Griffin v. Ortiz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00602-CNS-STV
RYAN JAMES GRIFFIN,
Plaintiff,
v.
APRIL ORTIZ,
JOLEENA PEACHEE,
ABDON VARGAS,
LEROY MORA,
NICHOLAS HOOVER,
MATTHEW MILLER, and
DILLON EVANS,
Defendants.
_____________________________________________________ 	_________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
___________________________________________________________ 	___________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint Pursuant to Fed. R. 	Civ. P. 12(b)(6) (the “Motion”) [#52],
which has been referred to this Court [#53]. 	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 disposition of the Motion.
For the following reasons, this Court respectfully RECOMMENDS that the Motion be
GRANTED IN PART and DENIED IN PART.
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 1 of 26

2
I. 	FACTUAL BACKGROUND1
Plaintiff is a Colorado Department of Corrections (“CDOC”) inmate who is currently
housed at the Delta Correctional Center (“DCC). [#67] This action arises from incidents
occurring while Plaintiff was incarcerated at the Colorado Territorial Correctional Facility
(“CTCF”). [See generally #44]
In May 2023, Plaintiff was initially processed at CTCF Cell House No. 5 and was
strip searched by a CTCF Officer. [Id. at ¶¶ 8-9] This area is monitored by one or more
security video cameras. 	[Id. at ¶ 11] 	Nonetheless, the cameras are positioned so that
they do not capture images or live feed the strip search. [Id. at ¶ 12]
On July 1, 2023, Plaintiff was employed in the CTCF’s Food Service Department
clearing trays and washing dishes. [Id. at ¶¶ 13-14] Sergeant Ramirez, a female CDOC
employee, escorted Plaintiff from the kitchen to the Midway Security Building for a random
strip search. 	[Id. at ¶¶ 15-16] 	The Midway Security Building has special rooms and
barriers to ensure that the strip searches are not recorded for live viewing or recording.
[Id. at ¶¶ 17-19] As a result, Plaintiff was not concerned about this strip search.2 [Id. at
¶ 17] 	Indeed, prior to August 1, 2023, all of Plaintiff’s strip searches were unrecorded.
[Id. at ¶ 25]
On August 1, 2023, while Plaintiff was working in the CTCF’s Food Service
Department, he was again subjected to a random strip search. 	[Id. at ¶¶ 26, 32] 	The
1 The facts are drawn from the allegations in Plaintiff’s Second Amended Complaint (the
“Complaint”) [#44], which must be taken as true when considering a motion to dismiss.
Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662
F.3d 1152, 1162 (10th Cir. 2011)).
2 A similar, unrecorded strip search occurred on December 16, 2023, after Plaintiff left
CTCF’s visitation room. [Id. at ¶¶ 20-24]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 2 of 26

3
strip search was “under the order, direction, and supervision” of Defendants Abdon
Vargas and Leroy Mora, and pursuant to a standing order of Defendant Joleena Peachee.
[Id. at ¶¶ 33-34] Rather than escorting Plaintiff to the Midway Security Building as in the
past, Defendant Mora took Plaintiff and four other Food Service Department workers to
the inmate restroom area of the CTCF kitchen. [Id. at ¶¶ 41-42] This restroom does not
contain security video cameras. [Id. at ¶ 43] While the four other inmates were searched
in the inmate restroom, Plaintiff was not. 	[Id. at ¶¶ 43, 45] 	Instead, Defendant Vargas
advised Defendants Mora, Matthew Miller, and Dillon Evans to strip search Plaintiff in the
CTCF kitchen’s utility closet. 	[Id. at ¶ 46] 	When Plaintiff asked to be searched in the
restroom or the Midway Security Building, Defendant Vargas told Plaintiff that the search
would be conducted “as ordered” and Defendants Miller and Evans stated that those
“orders” included strip searching Plaintiff in the CTCF utility closet. 	[Id. at ¶¶ 47-49]
Because 	Plaintiff 	feared 	adverse 	consequences—including 	potential 	administrative
punishment, criminal charges, or physical punishment—Plaintiff acquiesced to the strip
search. [Id. at ¶¶ 54-57]
As he was removing his clothing, Plaintiff noticed a security video camera installed
in the ceiling. [Id. at ¶ 58] Plaintiff felt physically ill and humiliated out of fear that the live
feed could be seen by staff members of both genders, shared with staff members of both
genders, and even accessed by inmates or placed on social media or pornographic
websites. 	[Id. at ¶¶ 59-64] 	Prior to the search, either Defendant Evans or Defendant
Miller commented that they were looking forward to seeing Plaintiff’s Sarah Palin tattoo,
which is on Plaintiff’s butt. 	[Id. at ¶ 65] 	Defendants Evans and Miller conducted a
thorough strip search during which Plaintiff heard laughter from these Defendants. [Id. at
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 3 of 26

4
¶¶ 66-72] 	For several weeks after this search, Plaintiff heard officers laugh amongst
themselves and comment on Plaintiff’s Sarah Palin tattoo. [Id. at ¶ 90]
The day after the recorded strip search, Plaintiff filed a Prison Rape Elimination
Act (“PREA”) complaint through the CDOC’s administrative process. [Id. at ¶ 76] In the
complaint, Plaintiff asserted that the recorded strip search constituted the use of
excessive force, and was tantamount to sexual assault, because the CDOC regulations
do not allow for the recording of a strip search. 	[Id. at ¶ 77] 	Plaintiff did not receive a
response from the CTCF and so he sent a letter to Defendant April Ortiz, CTCF’s PREA
Compliance Manager, expressing his concerns and requesting that all evidence of the
search be preserved. [Id. at ¶¶ 80-82] Defendant Ortiz responded that the strip search
was conducted in a private location away from other offenders, that the strip search can
be recorded at any time (based on the offender’s actions), and that she believed the
August 1 search fell within CTCF policy. 	[Id. at ¶ 83] 	Plaintiff alleges that Defendant
Ortiz’s statement is inconsistent with CTCF administrative regulations which only permit
the recording of a strip search during a cell extraction or where the inmate is alleged to
have ingested drugs, neither of which applied to Plaintiff’s August 1 search. [Id. at ¶¶ 86-
88]
In August 2023, after Plaintiff filed his PREA report, Defendant Mora stopped
Plaintiff from attending a mental health appointment, stopped Plaintiff from attending a
medical appointment, stopped Plaintiff from attending a library visit to record the reading
of a children’s book to Plaintiff’s daughter, stopped Plaintiff from attending a law library
appointment, and stopped Plaintiff from attending a CDOC Case Manager appointment
to discuss early release. 	[Id. at ¶¶ 92-96] 	That same month, Defendant Mora filed an
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 4 of 26

5
official CDOC disciplinary “write-up” for Plaintiff’s attendance at a previously scheduled
medical appointment and physical therapy appointment. [Id. at ¶ 97] Plaintiff suspected
that Defendant Mora was retaliating against Plaintiff for Plaintiff’s filing of the PREA report,
and Plaintiff therefore filed grievances against Defendant Mora. [Id. at ¶ 98]
On August 30, 2023, Defendant Mora approached Plaintiff during Plaintiff’s kitchen
shift and ordered Plaintiff to turn around so that Defendant Mora could place Plaintiff in
handcuffs and have Plaintiff strip searched. [Id. at ¶¶ 100-01, 107] Because Defendant
Mora had been involved in the August 1 strip search, Defendant Mora’s order for Plaintiff
to “cuff up” triggered Plaintiff’s post-traumatic stress disorder (“PTSD”). [Id. at ¶¶ 103-07]
The lingering trauma and humiliation from the August 1 strip search caused Plaintiff to be
slow in taking his clothes off. 	[Id. at ¶ 108] 	Defendant Mora grew impatient and
threatened to mace Plaintiff. 	[Id. at ¶ 109] 	Plaintiff quickly finished undressing and lay
naked on his stomach with his hands behind his back. [Id. at ¶ 110] Sergeant Quintana,
a female sergeant present at the time, hit an emergency button, after which Defendant
Mora placed Plaintiff back into handcuffs. 	[Id. at ¶¶ 114-15] 	Defendant Mora escorted
Plaintiff to another area of CTCF and Sergeant McFall conducted a complete strip search
while wearing a body camera. [Id. at ¶¶ 115-16] Following the strip search, Plaintiff was
taken to administrative segregation for five or six days of solitary confinement. 	[Id. at ¶
117] 	Plaintiff was ultimately charged with “advocating or creating facility disruption”
causing the Boulder Community Treatment Center to deny Plaintiff’s application for
community confinement. 	[Id. at ¶ 122-23] 	Based upon the August 30 incident, on
February 29, 2024, Plaintiff filed a second PREA report with an outside PREA reporting
agency in Olympia, Washington. [Id. at ¶ 124]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 5 of 26

6
On March 5, 2024, another CTCF inmate, Nicholas Aurelio, told Plaintiff that he
had been invited by a CTCF correctional officer to watch a recording of Plaintiff’s August
30 strip search. [Id. at ¶ 125] According to Mr. Aurelio, this correctional officer showed
the entire strip search to Mr. Aurelio and several other inmates. 	[Id. at ¶ 126] 	“On
information and belief,” the correctional officer who showed this footage was Defendant
Nicholas Hoover, the correctional officer who provides security in the CTCF medical
building. [Id. at ¶ 129] “On information and belief, on August 30, 2023, and for weeks or
months thereafter, Defendant Hoover invited CTCF staff members[,] medical contractors
[and inmates] to view the August 30, 2023 security camera footage of the . . . strip search.”
[Id. at ¶ 302-03] Upon learning of Defendant Hoover’s sharing of the video, Plaintiff filed
a third PREA report with the PREA reporting office in Olympia, Washington. [Id. at ¶ 130]
As a result of Defendants’ actions, Plaintiff continues to suffer from PTSD and
other 	psychological 	and 	physical 	symptoms, 	including 	fear 	of 	lights 	and 	noises,
correctional officers, showers, and small rooms. 	[Id. at ¶¶ 134-35] 	Plaintiff has
intermittent lack of appetite, uncontrollable sobbing, insomnia and panic attacks. 	[Id. at
¶¶ 135-36] Physically, Plaintiff remains chronically ill and experiences migraines, lower
back pain, gastrointestinal upset, and a lower leg infection that will not heal. 	[Id. at ¶¶
137-41] 	Plaintiff’s physical and emotional issues have been exasperated by Defendant
Mora’s actions in refusing Plaintiff access with mental health care and medical treatment
for Plaintiff’s leg injury. [Id. at ¶ 141]
On January 24, 2024, Plaintiff was moved from CTCF to St. Thomas-More Hospital
for emergency treatment to remove a steel rod from his left shin bone. [Id. at ¶ 142] The
infection in Plaintiff’s leg “had become septic after nearly 6 months of PTSD trauma.” [Id.]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 6 of 26

7
Plaintiff underwent a three-hour surgery to remove the steel rod and treat the infection in
Plaintiff’s leg. 	[Id. at ¶ 143] 	Plaintiff spent three days in the hospital before being
transferred back to CTCF. [Id. at ¶¶ 144-45] Plaintiff remained in the CTCF infirmary for
approximately three weeks, “receiving sub-standard medical care.” [Id. at ¶ 146] Plaintiff
continues to suffer chronic and debilitating pain in his leg, and he walks with a pronounced
limp and the occasional use of a walker. [Id. at ¶ 147]
According to Plaintiff, CTCF did not conduct a fair and balanced investigation into
his August 1, 2023 recorded strip search. 	[Id. at ¶¶ 175-81] 	Specifically, Plaintiff
maintains that CTCF officials, including Defendants Ortiz and Vargas, did not interview
inmates who witnessed the incident. [Id. at ¶¶ 175-81; 214-17, 260-63] And, according
to the Complaint, Defendant Hoover cancelled two inmates’ medical visits upon learning
that they were assisting Plaintiff with his investigation. [Id. at ¶¶ 304-05]
Plaintiff asserts that he “learned from another inmate that the CTCF has a pattern
and practice of subjecting Hispanic/Catholic inmates (like [Plaintiff]) to recorded strip
searches in the CTCF kitchen utility closet.” 	[Id. at ¶ 150] 	He further asserts that he
learned that CTCF has a pattern and practice of not following PREA and retaliating
against inmates who avail themselves of PREA’s protections. [Id. at ¶¶ 151-52] Plaintiff
provides an example of another inmate who filed a grievance asserting that he was strip
searched in the CTCF kitchen without reasonable or individualized suspicion. [Id. at ¶¶
153-62] 	That inmate filed a PREA complaint3 and maintains that, after he filed that
3 This complaint was filed in November 2022. 	[Id. at ¶ 196] 	Plaintiff maintains that
Defendants Ortiz, Peachee, Vargas and Mora were aware of this report and therefore
aware that CTCF officers could use the CTCF kitchen utility closet to record inmate strip
searches. 	[Id. at ¶¶ 196-99, 229-31, 252, 274-77] 	Plaintiff maintains that these four
Defendants condoned this activity and “failed to properly instruct [their] subordinates in
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 7 of 26

8
complaint, the video recording of his strip search was deleted. [Id. at ¶¶ 163-67] 	Once
the 	PREA 	investigation 	was 	completed, 	the 	inmate 	was 	moved 	to 	the 	Sterling
Correctional Facility (“SCF”), allegedly in retaliation for filing the PREA complaint. [Id. at
¶¶ 168-70]
Plaintiff initiated this action on March 4, 2024. 	[#1] 	Plaintiff’s operative Second
Amended Complaint asserts three causes of action, all brought pursuant to 42 U.S.C. §
1983: (1) retaliation, in violation of the First Amendment; (2) unreasonable search, in
violation of the Fourth Amendment; and (3) excessive force, in violation of the Eighth
Amendment. 	[#44 at 3, 29-30] 	Plaintiff seeks compensatory, exemplary, and punitive
damages, as well as declaratory and injunctive relief. [Id. at 30]
On July 25, 2024, Defendants filed the instant Motion, seeking dismissal of all of
Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6). [#52] Plaintiff has
responded to the Motion [#91] and Defendants have replied [#95].
II. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for a “failure to state a claim upon which relief can be granted.” 	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, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not
procedures compliant with PREA and its regulations.” 	[Id. at ¶¶ 203-04, 235-36, 255,
281-82]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 8 of 26

9
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court’s ultimate duty is
to “determine whether the complaint sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the legal theory proposed.” 	Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
III. 	ANALYSIS
Defendants argue: (1) Plaintiff has failed to plausibly allege a First Amendment
violation [#52 	at 	6-8]; 	(2) 	the strip 	searches 	were 	rationally 	related 	to legitimate
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 9 of 26

10
penological interests and therefore Plaintiff’s unreasonable search claim fails [id. at 8-10];
(3) Plaintiff has failed to plausibly allege an excessive force claim [id. at 10-13]; (4) the
Prison Litigation Reform Act (“PLRA”) does not permit Plaintiff to recover compensatory
damages because he has not alleged physical injury [id. at 13-14]; and (5) Defendants
are entitled to qualified immunity [id. at 14-15]. The Court begins with an overview of the
doctrine of qualified immunity, then turns to Defendants’ specific arguments.
A. 	Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 	Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted). 	Once the defense of
qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that
the official violated a statutory or constitutional right, and (2) that the right was “clearly
established” at the time of the challenged conduct.’” Quinn v. Young, 780 F.3d 998, 1004
(10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
“To 	be 	clearly 	established, a 	legal principle 	must have 	a 	sufficiently 	clear
foundation in then-existing precedent” such that it is “settled law.” District of Columbia v.
Wesby, 583 U.S. 48, 56 (2018). 	The Supreme Court has "not yet decided what
precedents—other than [its] own—qualify as controlling authority for purposes of qualified
immunity." 	Id. at 66 n.8. 	The Tenth Circuit, however, has stated that “[o]rdinarily this
standard requires either that there is a Supreme Court or Tenth Circuit decision on point,
or that the ‘clearly established weight of authority from other courts [has] found the law to
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 10 of 26

11
be as the plaintiff maintains.’” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting
Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Tenth Circuit has explained the “clearly established” prong of the qualified
immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates
that right. 	Although plaintiffs can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have
placed 	the 	statutory 	or 	constitutional 	question 	beyond 	debate. 	The
dispositive question is whether the violative nature of the particular conduct
is clearly established. . . . 	Qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.
Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted).
And the Supreme Court has “repeatedly stressed that courts must not define clearly
established law at a high level of generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular circumstances that he or she faced.”
Wesby, 583 U.S. at 590 (quotation omitted).
Courts have “discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” 	Pearson, 555 U.S. at 236. 	In Pearson, the Supreme Court recognized
that “[w]hen qualified immunity is asserted at the pleading stage, the precise factual basis
for the plaintiff's claim or claims may be hard to identify” and thus that the determination
of the first prong of the qualified immunity analysis may be “an uncomfortable exercise,”
because “the answer [to] whether there was a violation may depend on a kaleidoscope
of facts not yet fully developed.” Id. at 238–39 (internal quotation omitted). The Supreme
Court further acknowledged that, in certain cases, “a court will rather quickly and easily
decide that there was no violation of clearly established law before turning to the more
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 11 of 26

12
difficult question whether the relevant facts make out a constitutional question at all.” Id.
at 239.
B. 	First Amendment Retaliation Claim
To state a First Amendment retaliation claim against a government official, a
plaintiff must prove three elements:
(1) that the plaintiff was engaged in constitutionally protected activity; (2)
that the defendant’s actions caused the plaintiff to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in that activity;
and (3) that the defendant’s adverse action was substantially motivated as
a response to the plaintiff’s exercise of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). Defendants challenge the
second and third elements of Plaintiff’s retaliation claim. 	[#52 at 7-8] 	Specifically,
Defendants argue that Plaintiff has only alleged retaliatory conduct by Defendant Mora
and, even with respect to Defendant Mora, Plaintiff has not alleged that Defendant Mora
knew about Plaintiff’s PREA reports or grievances. [Id.]
The Court agrees that Plaintiff has failed to allege any retaliatory action against
him by any Defendant besides Defendant Mora. 	Plaintiff’s response mentions a
subsequent facility transfer but does not mention which, if any, of the current Defendants
initiated the transfer. 	[#91 at 4] 	Indeed, it does not even clearly state that the facility
transfer was initiated due to Plaintiff’s PREA reports or grievances, instead suggesting
that it may be related to another complaint regarding time computation—an issue not
raised in Plaintiff’s Complaint.4 	[Id.] 	Thus, the Court agrees that Plaintiff has failed to
plausibly allege retaliation against any Defendant besides Defendant Mora.
4 Plaintiff does allege that Defendant Hoover cancelled two inmates’ medical visits upon
learning that they were assisting Plaintiff with his investigation. [Id. at ¶¶ 304-05] But this
would constitute retaliation against those individuals, not retaliation against Plaintiff.
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 12 of 26

13
With respect to Defendant Mora, however, the Court concludes that Plaintiff has
plausibly alleged a retaliation claim. Plaintiff alleges that he filed a PREA complaint and
grievances against Defendant Mora after the August 1, 2023 strip search.5 [#44 at ¶ 98]
That same month, Defendant Mora stopped Plaintiff from attending a mental health
appointment, stopped Plaintiff from attending a medical appointment, stopped Plaintiff
from attending a library visit to record the reading of a children’s book to Plaintiff’s
daughter, stopped Plaintiff from attending a law library appointment, and stopped Plaintiff
from attending a CDOC Case Manager appointment to discuss early release. [Id. at ¶¶
92-96] Also that month, Defendant Mora filed an official CDOC disciplinary “write-up” for
Plaintiff’s attendance at a previously scheduled medical appointment and physical
therapy appointment. 	[Id. at ¶ 97] 	The Court concludes that these actions—denying
Plaintiff necessary medical treatment, denying Plaintiff law library access, and denying
Plaintiff an opportunity to discuss early release—would be sufficient to chill a person of
ordinary firmness from continuing to engage in the grievance process. 	Lewis v. Clark,
577 F. App’x 786, 799 (10th Cir. 2014) (denial of access to law library is sufficiently
serious to chill a person of ordinary firmness from continuing to engage in that activity);
Parks v. Bd. of Cnty. Comm’ns of Okla Cnty., CIV-20-205-D, 2021 WL 9274560, at *10
(W.D. Okla. Apr. 23, 2021) (collecting cases for the proposition that “having medical care
withheld would chill a person of ordinary firmness from continuing to engage in protected
5 The first PREA report was filed on August 2, 2023, prior to any of the alleged retaliation.
[#44 at ¶ 76, id. at 9 (section heading indicating that the retaliation occurred after the first
PREA report)] 	The Complaint does not give the exact date that Plaintiff filed his
grievances. 	But it does indicate that Plaintiff filed several grievances in response to
various alleged acts of retaliation which occurred in August 2023 and alleges that
retaliation continued after the filing of these grievances. [Id. at ¶¶ 92-99, 134; id. at 29]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 13 of 26

14
activity”). 	Thus, Plaintiff has satisfied the second prong of his retaliation claim against
Defendant Mora.
The Court concludes that Plaintiff has also satisfied the third prong of his retaliation
claim against Defendant Mora. The PREA complaint was based upon a search involving
Defendant Mora and the grievances were filed directly against Defendant Mora. One may
plausibly infer that Defendant Mora was made aware of the PREA complaint and
grievances, even if only as part of CTCF’s routine investigation of inmate grievances.
This inference is strengthened by the fact that, within weeks of the PREA complaint being
filed and during the same time-frame as the grievances were lodged, Defendant Mora
began stopping Plaintiff from attending appointments he had previously been able to
attend and even issued a disciplinary “write-up” for an appointment that had previously
been scheduled. Thus, Plaintiff has plausibly alleged that Defendant Mora was aware of
the PREA complaint and/or grievances and retaliated against Plaintiff in the manner
described above. Cf. Pourya Shahmaleki v. Kansas State Univ., No. 15-7766-JAR, 2016
WL 3522040, at *6 (D. Kan. June 28, 2016) (in the analogous Title VII retaliation context,
stating that six weeks between protected activity and adverse action may be sufficient to
show causation (citing Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004)).
Thus, Plaintiff has plausibly alleged the third prong of his retaliation claim against
Defendant Mora.
The Court’s conclusion that Plaintiff has plausibly alleged a First Amendment
violation by Defendant Mora does not end the analysis. Defendant Mora has also raised
a qualified immunity defense [#52 at 14-15] and, as a result, Plaintiff must also establish
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 14 of 26

15
that the right was “clearly established” at the time of the challenged conduct.6 Quinn, 780
F.3d at 1004. 	Here, Plaintiff alleges that Defendant Mora retaliated against Plaintiff
because he filed grievances and a PREA complaint. 	And it is well-established in the
Tenth Circuit that prison officials cannot punish an inmate for exercising his First
Amendment right to file a grievance. 	See, e.g., Williams v. Meese, 926 F.2d 994, 998
(10th Cir. 1991). Thus, if Plaintiff’s allegations are true, and the Court must presume that
they are, then Defendant Mora would not be entitled to qualified immunity on Plaintiff’s
First Amendment retaliation claim.
Accordingly, the Court concludes that Plaintiff: (1) has stated a plausible First
Amendment retaliation claim against Defendant Mora, (2) Defendant Mora is not entitled
to qualified immunity at this stage on that claim, but (3) Plaintiff has not stated a plausible
First Amendment retaliation claim 	against any other Defendant. 	The Court thus
respectfully RECOMMENDS that Defendant’s Motion be GRANTED to the extent it seeks
dismissal of Plaintiff’s First Amendment retaliation claim against Defendants Evans,
Hoover, Miller, Ortiz, Peachee, and Vargas, but DENIED to the extent it seeks dismissal
of Plaintiff’s First Amendment retaliation claim against Defendant Mora.
C. 	Fourth Amendment Claim
“Although 	convicted 	prisoners 	are 	not 	entitled 	to 	the 	full 	protection 	of 	the
Constitution, they ‘do not forfeit all constitutional protections by reason of their conviction
6 While Plaintiff bears the burden of demonstrating that the law was clearly established,
see Bledsoe v. Carreno, 53 F.4th 589, 607 (10th Cir. 2022), the Tenth Circuit has recently
instructed that a court should “use its full knowledge of its own [and other relevant]
precedents” in engaging in a qualified immunity analysis. 	Jordan v. Jenkins, 73 F.4th
1162, 1174 n.10 (10th Cir. 2023) (quotation omitted). Thus, this Court has conducted its
own review of precedent in analyzing the clearly established prong of Defendants’
qualified immunity defense.
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 15 of 26

16
and confinement in prison.’” 	Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982)
(quoting Bell v. Wolfish, 441 U.S. 520, 545 (1979)). 	With regard to the Fourth
Amendment, “prisoners . . . retain a limited constitutional right to bodily privacy.” Hayes
v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995). 	And it is well established that “a strip
search is an invasion of personal rights of the first magnitude.” Farmer v. Perrill, 288 F.3d
1254, 1259 (10th Cir. 2002) (quoting Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.
1993)). 	Nevertheless, “not all strip searches are unconstitutional.” 	Sweat v. Rickards,
712 F. App'x 769, 782 (10th Cir. 2017). 	And a “practice impinging on an inmate's
constitutional rights will be upheld where it is ‘reasonably related to legitimate penological
interests.’” 	Id. (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). 	Ultimately, in
determining whether a strip search violates the Fourth Amendment, “[c]ourts must
consider the scope of the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559.
To plead a constitutional violation, Plaintiff must plausibly allege that the strip
search was not “reasonably related to legitimate penological interests.” Turner, 482 U.S.
at 89. 	Plaintiff’s Amended Complaint thus “must include sufficient facts to indicate the
plausibility that the actions of which he complains were not reasonably related to
legitimate penological interests.” Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010)
(emphasis in original). 	Although Plaintiff is not required to “identify every potential
legitimate interest and plead against it,” he must “plead facts from which a plausible
inference can be drawn that the action was not reasonably related to a legitimate
penological interest.” 	Id. 	In determining whether the policy or conduct at issue is
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 16 of 26

17
reasonably related to legitimate penological interests, the Court must give “substantial
deference” to prison authorities. Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1990).
“Maintaining safety and order at detention centers is reasonably related to legitimate
penological interests and requires the expertise of correctional officials, who must have
substantial discretion to devise reasonable solutions to problems.” Sweat, 712 F. App'x
at 782.
Here, Plaintiff has alleged two very intrusive strip searches involving both a close
inspection of Plaintiff’s genitals and a cavity search. 	[#44 at ¶¶ 66-72, 113] 	But the
Supreme Court has upheld such intrusive searches based upon institutional security.
Bell, 441 U.S. at 558, 560 (upholding policy requiring inmates “to expose their body
cavities for visual inspection as a part of a strip search conducted after every contact visit
with a person from outside the institution”); see also Maryland v. King, 569 U.S. 435, 462
(2013) (“A search of the detainee’s person when he is booked into custody may involve
a relatively extensive exploration including requiring at least some detainees to lift their
genitals or cough in a squatting position.” (quotations and citations omitted)). Moreover,
the searches occurred at a time when Plaintiff was working as a kitchen employee,
presumably with access to sharp items that could be used as a weapon. 	And, in any
event, it does not appear that Plaintiff is arguing that the mere intrusive nature of the strip
searches, by themselves, rendered them unconstitutional. Rather, the Complaint, taken
as a whole, suggests that it was the recording of the strip searches (and sharing of those
videos) that rendered Defendants’ actions unconstitutional. [See generally ## 44; 91 at
3 (arguing that the recording and showing of the video violated Plaintiff’s constitutional
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 17 of 26

18
rights)] 	The Court must thus determine whether those actions violated Plaintiff’s
constitutional rights.7
The Court cannot conclude that the mere recording of the strip search, even a strip
search 	as 	intrusive 	as 	the 	one 	Plaintiff 	alleges, 	necessarily 	violates 	the 	Fourth
Amendment. Indeed, the Court can easily conclude that a prison could rationally decide
to record all strip searches to both protect inmates from sexual abuse by guards during
the strip search (because the guards would know that the search was being recorded)
and protect the guards from false claims of sexual abuse. And courts in this district and
elsewhere have concluded that the mere recording of a prison strip search does not
render the search unconstitutional. Jones v. City and Cnty. of Denver, No. 21-cv-00728-
RMR-NRN, 2022 WL 2038057, at *6 (D. Colo. Apr. 12, 2022) (collecting cases), report
and recommendation adopted, 2022 WL 20380589 (D. Colo. May 2, 2022). 	The Court
thus concludes that Plaintiff has failed to state a plausible Fourth Amendment claim based
upon either the nature of the strip searches or the fact that they were recorded. 	Since
these are the only allegations made against Defendants Evans, Mora, Miller, Ortiz,
Peachee, and Vargas, the Court concludes that Plaintiff has failed to plausibly allege a
Fourth Amendment claim against these Defendants.
With respect to Defendant Hoover, however, Plaintiff alleges that Inmate Aurelio
told Plaintiff that he had been invited by a CTCF correctional officer to watch a recording
7 To the extent Plaintiff seeks to establish a constitutional violation by alleging a violation
of CTCF or CDOC policy [#91 at 3], “a failure to adhere to administrative regulations does
not equate to a constitutional violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th
Cir. 1993); see also Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (finding that prison
regulations are “primarily designed to guide correctional officials in the administration of
a prison” and “not designed to confer rights on inmates”).
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 18 of 26

19
of Plaintiff’s August 30 strip search. 	[Id. at ¶ 125] 	According to Mr. Aurelio, this
correctional officer showed the entire strip search to Mr. Aurelio and several other
inmates. [Id. at ¶ 126] “On information and belief,” the correctional officer who showed
this footage was Defendant Hoover. [Id. at ¶ 129] “On information and belief, on August
30, 2023, and for weeks or months thereafter,” Defendant Hoover “invited CTCF staff
members[,] medical contractors [and inmates] to view the August 30, 2023 security
camera footage of the . . . strip search.” [Id. at ¶¶ 302-03]
The Court can discern no legitimate penological reason for Defendant Hoover’s
sharing of the strip search video with other inmates and staff,8 and Defendants’ Motion
does not identify any such reason. 	[#52] 	Instead, Defendants argue that Plaintiff’s
allegations concerning Defendant Hoovers’ sharing of the video are “conclusory and
contradictory.” 	[Id. at 10] 	The Court disagrees. 	Plaintiff provides detailed allegations
about inmate Aurelio being invited to watch a recording of the video and attending such
a viewing where several other inmates were present. 	[Id. at ¶¶ 125-26] 	While Plaintiff
only alleges “on information and belief” that the correctional officer who showed the video
was Defendant Hoover, he provides a basis for such information and belief, namely that
Defendant Hoover is the correctional officer who provides security in the CTCF medical
building. [Id. at ¶ 129] At this stage of the proceedings, where Plaintiff has not yet been
provided the opportunity for discovery to test his claims, the Court finds that Plaintiff’s
allegations plausibly suggest that Defendant Hoover shared the video of the strip search
8 The Complaint does not suggest that other staff needed to view the video for penological
reasons, such as to investigate Plaintiff’s claims. 	[See generally #44] 	Rather, the
Complaint asserts Defendant Hoover shared the video “for the correctional officers’
prurient interest, and for the added bonus of humiliating and endangering [Plaintiff] in front
of CTCF inmates.” [Id. at ¶ 128]
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 19 of 26

20
with other inmates and staff, and without any legitimate penological basis for doing so.9
The Court thus finds that Plaintiff has plausibly alleged a Fourth Amendment violation
against Defendant Hoover.
Having concluded that Plaintiff has stated a plausible Fourth Amendment claim
against Defendant Hoover, the Court must once again determine whether the right was
“clearly established” at the time of the challenged conduct. Quinn, 780 F.3d at 1004. The
Court concludes that it was. 	The Tenth Circuit held in 2002 that an inmate has a “well
established right . . . not to be subjected to a humiliating strip search in full view of several
(or perhaps many) unless the procedure is reasonably related to a legitimate penological
interest.” 	Farmer, 288 F.3d 	at 1260 (emphasis in original). 	As explained above,
Defendant Hoover has not offered any legitimate penological interest in sharing the video
of Plaintiff’s strip search to other inmates. 	And the Court does not find a meaningful
distinction between subjecting an inmate to a humiliating strip search in full view of other
inmates in the first instance and replaying a video of that same humiliating strip search to
other inmates without a legitimate penological reason for doing so. Thus, the Court finds
that the allegations, if true, demonstrate that Defendant Hoover violated Plaintiff’s clearly
established Fourth Amendment rights.
Accordingly, the Court concludes that Plaintiff: (1) has stated a plausible Fourth
Amendment claim against Defendant Hoover, (2) Defendant Hoover is not entitled to
9 Defendants also argue that Plaintiff’s allegations are contradictory because he alleges
that Defendant Hoover shared the video but also alleges that Defendants took no effort
to retain evidence of Plaintiff’s alleged PREA violations. [#52 at 10] The Court does not
find such allegations to be necessarily inconsistent—Defendant Hoover could easily have
showed the video to others then either destroyed the video or allowed it to be overwritten
once he learned about Plaintiff’s PREA claim.
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 20 of 26

21
qualified immunity at this stage on that claim, but (3) Plaintiff has not stated a plausible
Fourth Amendment retaliation claim against any other Defendant. 	The Court thus
respectfully RECOMMENDS that Defendant’s Motion be GRANTED to the extent it seeks
dismissal of Plaintiff’s Fourth Amendment claim against Defendants Evans, Mora, Miller,
Ortiz, Peachee, and Vargas, but DENIED to the extent it seeks dismissal of Plaintiff’s
Fourth Amendment claim against Defendant Hoover.
D. 	Eighth Amendment Claim
The Eighth Amendment to the United States Constitution protects a prisoner’s right
to “humane conditions of confinement guided by ‘contemporary standards of decency.’”
Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429
U.S. 97, 103 (1976)). As part of the guarantee to humane conditions of confinement, the
Eighth Amendment proscribes cruel and unusual punishment, which is defined as the
“unnecessary and wanton infliction of pain.” 	Hudson v. McMillian, 503 U.S. 1, 5 (1992)
(quoting 	Whitley v. Albers, 475 U.S. 312, 	320 (1986)). 	In assessing an 	Eighth
Amendment excessive force claim, the “core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Id. at 7.
Ordinarily, an excessive force claim involves two prongs. Smith v. Cochran, 339
F.3d 1205, 1212 (10th Cir. 2003). 	The “objective prong . . . asks ‘if the alleged
wrongdoing was objectively harmful enough to establish a constitutional violation.’” 	Id.
(quoting Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999)). 	The
subjective prong, on the other hand, requires “the plaintiff [to] show that ‘the officials
act[ed] with a sufficiently culpable state of mind.’” Id. (second alteration in original).
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 21 of 26

22
The Tenth Circuit has held that to constitute an Eighth Amendment violation, a strip
search must be conducted in an abusive fashion or with unnecessary force. Jackson v.
Cent. N.M. Corr. Fac., 976 F.2d 740, 1992 WL 236921, at *4 (10th Cir. Sept. 21, 1992)
(unpublished Table decision); Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir. 1986). Here,
as detailed above, though Plaintiff has alleged two intrusive searches, the Supreme Court
has upheld the legality of similar searches and the Court cannot conclude that the
searches themselves were either abusive or involved the unnecessary use of force. And
while the allegations against Defendant Hoover plausibly allege a Fourth Amendment
violation, Defendant Hoover was not involved in the search itself and there are no
allegations that Defendant Hoover applied any force to Plaintiff. 	Thus, the Court
concludes that Plaintiff has failed to plausibly allege an Eighth Amendment excessive
force 	claim 	against 	any 	of 	the 	Defendants. 	Accordingly, 	the 	Court 	respectfully
RECOMMENDS that the Motion be GRANTED to the extent it seeks to dismiss Plaintiff’s
Eighth Amendment claim.10
E. 	Compensatory Damages
Defendants next assert that Plaintiff cannot recover compensatory damages
because he has failed to allege a physical injury. 	[#52 at 13] 	Under the PLRA, “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a prior
10 Plaintiff provides some detail about his medical treatment at CTCF. 	[See generally
#44] 	But 	the 	Complaint 	clearly 	identifies Plaintiff’s 	third 	claim 	as 	an 	“excessive
force/sexual assault/cruel and unusual punishment” claim. 	[Id. at 3, 29-30] 	The Court
interprets Plaintiff’s discussion of his medical treatment as supplementing the harm he
received from the strip searches and retaliation, as opposed to bringing a separate
deliberate indifference to medical care claim.
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 22 of 26

23
showing of physical injury.” 	42 U.S.C. § 1997e(e). 	“The statute limits the remedies
available, regardless of the rights asserted, if the only injuries are mental or emotional.”
Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001), cert. denied, 536 U.S. 904
(2002).
Here, 	Plaintiff 	alleges 	that 	he 	continues 	to 	suffer 	from 	PTSD 	and 	other
psychological 	symptoms, 	including 	fear 	of 	lights 	and 	noises, 	correctional 	officers,
showers, and small rooms. 	[#44 at ¶¶ 134-35] 	He has intermittent lack of appetite,
uncontrollable sobbing, insomnia and panic attacks. 	[Id. at ¶¶ 135-36] 	These are the
type of mental injuries that are not compensable under the PLRA. Indeed, “even if those
emotional injuries had a physical impact on Plaintiff's health”—such as loss of sleep—
"physical manifestations of mental and emotional injuries are ‘insufficient to withstand the
“physical injury” requirement’ of the PLRA.” 	Bueno v. Chekush, 355 F. Supp. 3d 987,
1000 (D. Colo. 2018) (quoting Hughes v. Colo. Dep't of Corrs., 594 F.Supp.2d 1226, 1238
(D. Colo. 2009)); see also Hughes, 594 F.Supp.2d at 1238-39 (noting that physical
manifestations of depression and anxiety “cannot support claims for damages pursuant
to 42. U.S.C. § 1997e(e)”); Session v. Clements, No. 14-cv-02406-PAB-KLM, 2018 WL
637461, at *10 (D. Colo. Jan. 31, 2018) (“While Plaintiff alleges that he suffered “physical
injuries,” those delineated by him are not distinct from any mental or emotional injuries
that he may have suffered.”), report and recommendation adopted, 2018 WL 1531685
(D. Colo. Mar. 29, 2018); Folts v. Grady Cnty. Board of Cnty. Comm’r, No. CIV-15-996-
M, 2016 WL 7116184, at *8 (W.D. Okla. Nov. 2, 2016) (dismissing claim for compensatory
damages under the PLRA where the plaintiff did not allege that the lack of mental health
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 23 of 26

24
treatment led to physical injury), report and recommendation adopted, 2016 WL 7116192
(W.D. Okla. Dec. 06, 2016).
But Plaintiff has also alleged physical injuries from Defendants’ actions. He alleges
that 	he 	remains 	chronically 	ill 	and 	experiences 	migraines, 	lower 	back 	pain,
gastrointestinal upset, and a lower leg infection that will not heal. 	[#44 at ¶¶ 137-41]
“Appeals courts confronting the issue have held that although a de minimis showing of
physical injury does not satisfy the PLRA’s physical injury requirement, an injury need not
be significant to satisfy the requirement.” Clifton v. Eubank, 418 F. Supp. 2d 1243, 1245
(D. Colo. 2006), order clarified on other grounds on reconsideration, 2006 WL 893600 (D.
Colo. Apr. 5, 2006). 	And severe headaches—which are not merely manifestations of
mental or emotional distress—satisfy the physical injury requirement of the PLRA. 	See
Wagner v. Hartley (Wagner I), No. 10-cv-02501-WYD-KLM, 2012 WL 1079185, at *7 (D.
Colo. Mar. 30, 2012) (refusing to conclude “that Plaintiff’s allegations of severe and
frequent headaches are merely a de minimis injury as a matter of law” and finding
allegations of severe migraines and/or other headaches, coupled with muscle atrophy
and joint pain, sufficient to satisfy physical injury requirement); see also Murray v.
Edwards Cty. Sheriff’s Dep’t, 248 F. App’x 993, 996–97 (10th Cir. 2007) (assuming,
without deciding, that Plaintiff’s “headaches and tooth pain are ‘physical injuries’ sufficient
to permit him to recover damages for mental or emotional injury under § 1997e(e)”).
Similarly, Plaintiff has plausibly alleged that Defendant Mora denied Plaintiff medical care
in retaliation for Plaintiff filing his grievance and PREA claim. 	If that denial of medical
care led to the worsening infection in Plaintiff’s leg, that would constitute physical injury.
Accordingly, at this stage of the proceedings, the Court cannot conclude that Plaintiff
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 24 of 26

25
cannot demonstrate physical injury from Defendants’ actions. 	As a result, the Court
respectfully RECOMMENDS that the Motion be DENIED to the extent it seeks to dismiss
Plaintiff’s claim for compensatory damages.
IV. 	CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Motion
to Dismiss [#52] be GRANTED IN PART and DENIED IN PART. Specifically, the Court
RECOMMENDS that the Motion be:
(1) GRANTED to the extent it seeks to dismiss Plaintiff’s First Amendment
retaliation claim against Defendants Evans, Hoover, Miller, Ortiz, Peachee, and
Vargas;
(2) GRANTED to the extent it seeks to dismiss Plaintiff’s Fourth Amendment claim
against Defendants Evans, Mora, Miller, Ortiz, Peachee, and Vargas;
(3) GRANTED to the extent it seeks to dismiss Plaintiff’s Eighth Amendment claim
against all Defendants;
(4) DENIED to the extent it seeks to dismiss Plaintiff’s First Amendment retaliation
claim against Defendant Mora;
(5) DENIED to the extent it seeks to dismiss Plaintiff’s Fourth Amendment claim
against Defendant Hoover; and
(6) DENIED to the extent it seeks to dismiss Plaintiff’s claim for compensatory
damages.11
11 Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations with the Clerk of the United States District Court for
the District of Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 25 of 26

26
DATED: January 6, 2025 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
the district court on notice of the basis for the objection will not preserve the objection for
de 	novo 	review. 	“[A] 	party’s 	objections 	to 	the 	magistrate 	judge’s 	report 	and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 East 30th Street, 73
F.3d 1057, 1060 (10th Cir. 1996). 	Failure to make timely objections may bar de novo
review by the district judge of the magistrate judge’s proposed findings of fact, legal
conclusions, and recommendations and will result in a waiver of the right to appeal from
a judgment of the district court based on the proposed findings of fact, legal conclusions,
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). 	But see, Morales-
Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
Case No. 1:24-cv-00602-CNS-STV Document 97 filed 01/06/25 USDC Colorado
pg 26 of 26