Bueno v. Chekush

355 F. Supp. 3d 987
CourtDistrict Court, D. Colorado
DecidedDecember 21, 2018
DocketCivil Action No. 18-cv-00693-STV
StatusPublished
Cited by3 cases

This text of 355 F. Supp. 3d 987 (Bueno v. Chekush) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bueno v. Chekush, 355 F. Supp. 3d 987 (D. Colo. 2018).

Opinion

Magistrate Judge Scott T. Varholak *991This matter comes before the Court on a Motion to Dismiss (the "Motion"), filed by Defendants Marcie Chekush, Scott Willard, and Larry Turner1 on August 8, 2018. [# 25] The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [## 31, 32] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the Motion's disposition. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART .

I. FACTUAL BACKGROUND2

In January 2017, Plaintiff Michael Bueno, an inmate currently imprisoned at the Sterling Correctional Facility ("SCF"), was transferred from SCF to the Denver Reception and Diagnostic Center ("DRDC") to work as an Offender Care Aide ("OCA") in the facility's infirmary. [# 9 at ¶ 2] As an OCA, Plaintiff is specially trained to assist inmates with serious disabilities under the Americans with Disabilities Act, and inmates who require hospice care. [Id. ] DRDC is a facility where many Colorado Department of Corrections ("CDOC") inmates are sent for serious medical procedures or end-of-life transitions. [Id. ]

At DRDC, Plaintiff began working at the infirmary and training with other OCAs as an "OCA III." [Id. at ¶ 3] The OCA III position is particularly advantageous because of the quality of work and the hourly wage, which is significantly higher than other positions within the CDOC. [Id. ] Because Plaintiff's position was considered a "facility needs" job, Plaintiff was classified as a permanent resident at DRDC. [Id. ] Plaintiff was placed in the incentive unit, a desirable assignment due to superior living conditions, in recognition for his many years of good behavior. [Id. ]

On April 6, 2017, Plaintiff was informed by another inmate that Correctional Officer Houran had opened Plaintiff's mail, and displayed and laughed at photographs of Plaintiff's wife in lingerie. [Id. at ¶¶ 4-5] Officer Houran had harassed Plaintiff since his arrival at DRDC, including calling Plaintiff a homophobic slur over a facility intercom. [Id. at ¶ 9] Plaintiff reported the issue to two correctional officers, who reviewed the camera footage of Officer Houran delivering mail. [Id. at ¶ 6] The officers informed Plaintiff that they would contact the shift commander about the incident, and apologized to Plaintiff for Officer Houran's misconduct. [Id. ]

On April 7, 2017, Lieutenant Marcie Chekush, who was Officer Houran's supervising officer, informed Plaintiff that she had heard about Officer Houran's misconduct, and noted that staff is not allowed to deliver mail when inmates are out of their cells. [Id. at ¶¶ 7-8] A few days later, on April 10, 2017, Plaintiff again spoke with Lieutenant Chekush who informed Plaintiff that she would investigate the mail incident. [Id. at ¶ 10] On that same day, Lieutenant Chekush contacted Officer Willard, Plaintiff's case manager, and requested that Plaintiff be removed from the facility *992because he had complained about staff. [Id. at ¶ 11] Lieutenant Chekush, Officer Willard, and Case Manager Shoaga, head supervisor for all DRDC case managers, discussed Plaintiff's complaints regarding Officer Houran and agreed that Plaintiff should be removed from the facility for complaining about Officer Houran. [Id. at ¶ 18; see also id. at ¶ 23] Plaintiff was transported back to SCF on April 11, 2017, losing his incentive unit housing and his OCA III position. [Id. at ¶ 12] Plaintiff discovered his transfer had been justified as a bed space reclassification, approved by Officers Willard and Shoaga, even though Plaintiff was immediately replaced by another OCA III who was transferred from SCF to DRDC. [Id. at ¶¶ 15-16, 19, 23]

Plaintiff filed the instant lawsuit on March 22, 2018 pursuant to 42 U.S.C. § 1983. [# 1] Plaintiff was ordered to file an amended complaint [# 5], which he filed on May 29, 2018, alleging four First Amendment retaliation claims against Officers Chekush, Willard, Shoaga, and Turner, respectively. [# 9 at 4-9] Plaintiff alleges that the officers retaliated against him for complaining about Officer Houran's conduct by transferring Plaintiff back to SCF, in violation of his First Amendment rights. [See generally # 9] Plaintiff is suing all Defendants in both their individual and official capacities. [Id. at 2-4] Plaintiff seeks declaratory relief, injunctive relief enjoining Defendants from retaliating against Plaintiff for making complaints against Officer Houran and compelling the CDOC to investigate Officer Houran, and nominal, compensatory, and punitive damages. [Id. at 10] Defendants Chekush, Willard, and Turner filed the instant Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on August 8, 2018. [# 25] Plaintiff opposes the Motion. [# 40]

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS , 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974).

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must "accept as true all well-pleaded factual allegations ... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri , 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
355 F. Supp. 3d 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bueno-v-chekush-cod-2018.