The opinion of the court was delivered by: Kathryn H. Vratil United States District Judge
Under 42 U.S.C. § 1983, Shantell D. Lewis, an inmate in the custody of the Kansas Department of Corrections El Dorado Correctional Facility brings suit pro se and in forma pauperis against two correction officers -- Troy J. Carrell and Steven C. Chastain -- in their official and individual capacities. Plaintiff alleges that while Officer Chastain watched, Officer Carrell used excessive force during a pat-down search on January 20, 2012, in violation of plaintiff's Eighth Amendment rights. Plaintiff seeks nominal, compensatory and punitive damages, and equitable relief. This matter is before the Court on Officer Carrell's motion to dismiss, Defendant's Motion To Dismiss (Doc. #11) filed September 21, 2012. Because plaintiff does not seek injunctive relief, the Eleventh Amendment bars plaintiff's official capacity claim. Because plaintiff's complaint states a plausible Eighth Amendment violation that was clearly established at the time, the Court overrules Officer Carrell's request to dismiss plaintiff's individual capacity claim. The Court dismisses without prejudice plaintiff's claims against Officer Chastain for failure to effectuate timely service.
Motion To Dismiss Standards
Under Rule 12(b)(6), Fed. R. Civ. P., Officer Carrell asks the Court to dismiss plaintiff's Eighth Amendment claim because the Eleventh Amendment bars plaintiff's claim for damages in his official capacity and qualified immunity bars plaintiff's claim for damages in his personal capacity.
In deciding a Rule 12(b)(6) motion to dismiss, the Court assumes as true all well-pleaded factual allegations and views them in the light most favorable to the nonmoving party. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). But the Court is not required to accept legal conclusions as true. See Iqbal, 556 U.S. at 679; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). To survive a motion to dismiss, a complaint so construed must contain sufficient factual matter to state a claim that is plausible -- and not just conceivable -- on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions," "threadbare recitals" or "formulaic recitation of the elements of a cause of action" will not suffice; plaintiff must offer specific factual allegations to support each claim. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555; Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
The plausibility standard is not a "probability requirement," but it requires plaintiff to allege "more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Plaintiff has pled a facially plausible claim when the factual content of the complaint "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. It is not enough to plead facts that are "merely consistent with" liability. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not "shown" -- that the pleader is entitled to relief. Id. at 679 (citing Fed. R. Civ. P. 8(a)(2)).
The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
Nowhere in the law does context have greater relevance to the validity of a claim than prisoner civil-rights claims. Prisons are a unique environment, and the Supreme Court has repeatedly recognized that the role of the Constitution within their walls is quite limited. Government conduct that would be unacceptable, even outrageous, in another setting may be acceptable, even necessary, in a prison.
Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010).
In this case, plaintiff is a pro se prisoner who brings claims against state officers. Officer Carrell asserts sovereign immunity as to plaintiff's official capacity claim for damages and asserts qualified immunity as to plaintiff's personal capacity claim for damages. To survive a motion to dismiss based on qualified immunity, plaintiff must allege sufficient facts that, when taken as true, show that defendant plausibly violated constitutional rights which were clearly established at the time of the violation. Schwartz, 702 F.3d at 579 (citing Robbins, 519 F.3d at 1249). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court construes plaintiff's pro se complaint liberally and holds it to a less stringent standard than formal pleadings drafted by lawyers. Hall, 935 F.2d at 1110. But the Court does not assume the role of advocate for a pro se litigant; he must "follow the same rules of procedure that govern all other litigants." Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
The complaint, which the Court accepts as true and construes in the light most favorable to plaintiff, states as follows:
On January 20, 2012, between 5:00 and 5:45 p.m. at the El Dorado Correctional Facility, Special Security Team Officers Carrell and Chastain approached and stopped plaintiff for a routine pat-down search near the east dining hall. Officer Carrell conducted the search while Officer Chastain watched. When Officer Carrell searched close to plaintiff's scrotum and penis area, he grabbed plaintiff's penis and applied pressure. Officer Carrell continued the search and asked plaintiff, "How does that feel?" When Officer Carrell finished the search, he and Officer Chastain ...