# Losee v. Preece

> District Court, D. Utah · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10685331

## Case

- **Court:** District Court, D. Utah
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10685331

## How later opinions describe it (automated extraction)

- holding in Fourth Amendment case that district judges “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand”
- stating “driving force behind” qualified-immunity principles is “that ‘insubstantial claims’ against government officials be resolved prior to discovery . . . if possible”
- stating motion-to-dismiss purpose is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true”
- holding in case with allegations of inadequate medical care that Eighth Amendment “proscribes more than physically barbarous punishments,” also establishing “government’s obligation to provide medical care for those whom it is punishing by incarceration”

## Opinion text

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

KARL LOSEE, MEMORANDUM DECISION &
ORDER GRANTING MOTION TO
Plaintiff, ALTER OR AMEND JUDGMENT &
GRANTING MOTION TO DISMISS
v.

SGT. PREECE ET AL., Case No. 2:18-CV-195 TC

Defendants. District Judge Tena Campbell

On August 31, 2021, the Court denied Defendants’ Motion to Dismiss and ordered them
to file a Martinez report and dispositive motion. (ECF Nos. 35, 45.) Twenty days later,
Defendants filed Motion to Alter or Amend Judgment, under Federal Rule of Civil Procedure
59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry
of the judgment.”). (ECF No. 48.)
I. MOTION TO ALTER OR AMEND JUDGMENT
A motion under Federal Rule of Civil Procedure 59(e)
may be granted only if the moving party can establish: (1) an
intervening change in the controlling law; (2) the availability of
new evidence that could not have been obtained previously
through the exercise of due diligence; or (3) the need to correct
clear error or prevent manifest injustice. Servants of the Paraclete
v. Does, 2014 F.3d 1005, 1012 (10th Cir. 2000). A motion under
Rule 59(e) is not to be used to rehash arguments that have been
addressed or to present supporting facts that could have been
presented in earlier filings. Id. Reconsideration of a judgment after
its entry is an extraordinary remedy that should be used
sparingly. See Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th
Cir. 2004); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
(10th Cir. 2006); Zucker v. City of Farmington Hills, 643 F. App’x
555, 562 (6th Cir. 2016) (relief under R. 59(e) is rare).
Blake v. Jpay, No. 18-3146-SAC, 2019 U.S. Dist. LEXIS 150310, at *4-5 (D. Kan. Sept. 4,
2019).
Defendants argue the Court must correct its clear error of not analyzing Defendants’
qualified-immunity defense. (ECF No. 48, at 4.) In particular, Defendants contend the Court did
not address the second prong of the qualified-immunity analysis, which is whether the
unconstitutional conduct alleged was “clearly established.” (Id.) Plaintiff counters that
Defendants’ qualified-immunity argument is moot. (ECF No. 53, at 3.)
Defendants are correct that the Court erred in not giving the clearly-established prong the
required treatment. Accordingly, for the reasons set forth below, the Order denying Defendants’
motion to dismiss (ECF No. 45) is vacated, Defendants’ motion to alter or amend the judgment
(ECF No. 48) is granted, and Defendants’ Motion to Dismiss (ECF No. 40) is granted.
II. MOTION TO DISMISS
The Court now revisits the issues raised by Defendants’ motion to dismiss. On the basis
of qualified immunity, Defendants seek dismissal of Plaintiff’s pro se verified third amended
civil-rights complaint, in which he requests damages. (ECF No. 35.)

A. BACKGROUND
Plaintiff names as defendants Utah State Prison Sergeant Preece and caseworker Despain.
(Id. at 2.) He contends Defendants violated his federal constitutional rights when (1) on March 6,
2014, he “was assaulted by a fellow inmate who had a weapon that had been supplied to him by
Defendant Preece”; (2) after the assault, Defendant Preece “left [Plaintiff] assigned the top bunk
of the bunk bed even though there are no ladders to use to climb up to or down from the top
bunk”; and (3) Defendant Despain “wrote [Plaintiff to] tell [him] that [he] would not be
considered for a special attention release by the medical bureau.” (Id. at 3-4.)
Asserting failure to state a claim upon which relief may be granted and qualified
immunity, Defendants move for dismissal. (ECF No. 40, at 8, 12-21 (setting forth qualified-
immunity standards and plaintiff’s burden).) Plaintiff filed “Objection to Defendants’ Motion to
Dismiss for Failure to State a Claim.” (ECF No. 42.)
B. ANALYSIS
1. Standard for Sufficiency of Complaint
When deciding if a complaint1 states a claim upon which relief may be granted, a court
takes all well-pleaded factual statements as true and regards them in a light most favorable to the

plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Dismissal is fitting when, viewing those facts as true, a plaintiff has not posed a “plausible” right
to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519
F.3d 1242, 1247-48 (10th Cir. 2008). Plaintiff has the burden “to frame a ‘complaint with
enough factual matter (taken as true) to suggest’“ entitlement to relief. Robbins, 519 F.3d at 1247
(quoting Twombly, 550 U.S. at 556). When a civil-rights complaint contains “bare assertions,”
involving “nothing more than a ‘formulaic recitation of the elements’ of a constitutional . . .
claim,” a court considers those assertions “conclusory and not entitled to” an assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 554-55). In other
words, “the mere metaphysical possibility that some plaintiff could prove some set of facts in

1 The Court takes note that it is the facts stated in the complaint that are analyzed for failure to state a claim,
not facts stated in any other document. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (stating
motion-to-dismiss purpose is to test “the sufficiency of the allegations within the four corners of the complaint after
taking those allegations as true”).
support of the pleaded claims is insufficient; the complaint must give the court reason to believe
that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Red
Hawk, 493 F.3d at 1177 (italics in original).
When the complaint’s allegations are “so general that they encompass a wide swath of
conduct, much of it innocent,” then plaintiff has not stated a plausible claim. Khalik v. United
Airlines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quotations omitted). Thus, though modern rules
of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under some viable
legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alterations omitted).
A court construes pro se “‘pleadings liberally,’ applying a less stringent standard than is

applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). If
pleadings can reasonably be read “to state a valid claim on which the plaintiff could prevail,
[they should be read] so despite the plaintiff’s failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, “the proper
function of the district court [is not] to assume the role of advocate for the pro se litigant.” Id.;
see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998). Dismissing the complaint
“without affording the plaintiff notice or an opportunity to amend is proper only ‘when 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.’“2 Curley v. Perry, 246 F.3d 1278, 1281-82
(10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks omitted)).
2. Qualified-Immunity Discussion
In his Third Amended Complaint, these are the totality of specific relevant facts alleged
(viewed in a light most favorable to Plaintiff): (1) Regarding failure to protect by Defendant
Preece, “I was assaulted [and harmed] by a fellow inmate who had a weapon that had been
supplied to him by defendant Preece.” (ECF No. 35, at 3.) (2) Regarding another allegation of
cruel-and-unusual punishment against Defendant Preece, “Preece left me assigned to the TOP
bunk,” with “no ladders,” which is “dangerous and unreasonable for someone who is totally
blind.” (Id.) And, (3) regarding an allegation of cruel-and-unusual punishment by Defendant

Despain, “Despain wrote [Plaintiff] . . . and told [him] that [he] would not be considered for a
special attention release by the medical bureau.” (Id. at 3-4.)
In their motion to dismiss, Defendants assert the defense of qualified immunity. Qualified
immunity means that an official must have fair notice of the law before being subject to suit for
damages for violating it. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). Two important interests
are balanced by qualified immunity--”the need to hold public officials accountable when they

2 When Plaintiff’s original complaint, (ECF No. 1), was dismissed for failure to state a claim upon which
relief may be granted, Plaintiff was given a chance to amend, in an order giving specific information on the need to
affirmatively link defendants to civil-rights violation, (ECF No. 19). Plaintiff then filed an amended complaint,
(ECF No. 20), which was also dismissed for failure to state a claim and gave a chance to amend again, in an order
with specific information on the need to affirmatively link defendants, along with how to state claims for failure to
protect and provide adequate medical care, (ECF No. 27). Plaintiff next filed a second amended complaint, (ECF
No. 28), which was likewise dismissed for failure to state a claim and gave yet another chance to amend, in an order
with the same specific information on the need to affirmatively link defendants (for the third time), along with how
to state claims for failure to protect and provide adequate medical care (for the second time), (ECF No. 34). In that
last order, the Court stated, “This is the third and FINAL order allowing Plaintiff to cure deficiencies.” (ECF No. 34,
at 11.) Plaintiff finally filed the third amended complaint, (ECF No. 35), which is at issue here. Having given
Plaintiff so many chances to file an adequate complaint, with plenty of guidance on how to do so and a warning that
this was his last chance, the Court concludes any further opportunity to amend would be futile.
exercise power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009). Questions of qualified immunity should be resolved at the soonest feasible stage of
litigation. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (stating “driving force behind”
qualified-immunity principles is “that ‘insubstantial claims’ against government officials be
resolved prior to discovery . . . if possible”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982)); see also Pearson, 555 U.S. at 231 (“Because qualified immunity is ‘an immunity from
suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously
permitted to go to trial.’“ (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis
deleted))). Plaintiffs confronting qualified-immunity challenges do not face a heightened

pleading requirement. Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the qualified-immunity doctrine, “government officials performing discretionary
functions generally are shielded 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.” Harlow, 457 U.S. at 818. Hence, to overcome a Rule 12(b)(6) motion to dismiss,
involving a qualified-immunity defense, plaintiffs “must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional rights.”
Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008). To be
clear, when the qualified-immunity defense is raised, a “plaintiff carries a two-part burden to
show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if

so, (2) that the right was clearly established at the time of the defendant’s unlawful
conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal quotation marks
omitted). Courts may “exercise their sound 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.” Pearson, 555 U.S. at 236.
Here, the Court exercises its discretion to address Plaintiff’s failure to carry his burden of
showing that his rights were “clearly established at the time of the defendant’s conduct.”3 Ullery
v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020).
“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.’“ Mullenix v. Luna, 577 U.S. 7, 11
(2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658,
664 (2012)). ”To be clearly established, a legal principle must have
a sufficiently clear foundation in then-existing precedent.” Dist. of

3 Even so--as an aside--Plaintiff has also failed to meet the first prong as to each claim. This was even after
Plaintiff was given specific guidance on how to adequately state claims in three Court’s orders requiring him to
amend deficient complaints. (ECF Nos. 19, 27, 34.)
(1) Regarding Plaintiff’s failure-to-protect claim against Defendant Preece, Plaintiff’s allegation in its
entirety is as follows: “I was assaulted [and harmed] by a fellow inmate who had a weapon that had been supplied to
him by defendant Preece.” (ECF No. 35, at 3.) These allegations arguably do not meet the objective component of a
failure-to-protect cause of action, in that there is no alleged factual content as to what “a weapon” is--i.e., was the
item in question something that could “reasonably” be considered to “pose[] a substantial risk of serious harm”?
Gray v. Sorrels, 744 F. App’x 563, 568 (10th Cir. 2018) (unpublished). And the allegations do not meet the
subjective component, in that there is no alleged factual content as to Defendant Preece’s state of mind--i.e., how
would Defendant Preece have been aware of the “substantial risk of serious harm” in handing the item to the other
inmate and should he have “drawn the inference” of the substantial risk of serious harm? Id.
(2) Regarding another allegation of cruel-and-unusual punishment against Defendant Preece, Plaintiff’s
allegation in its entirety is as follows: “Preece left me assigned to the TOP bunk,” with “no ladders,” which is
“dangerous and unreasonable for someone who is totally blind.” (ECF No. 35, at 3.) Here, Plaintiff’s claim is
doomed by his failure to allege an injury. See 42 U.S.C.S. § 1997e(e) (2021) (“No 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 showing of physical injury or the commission of a sexual act.”)
Finally, (3) regarding an allegation of cruel-and-unusual punishment by Defendant Despain, Plaintiff’s
allegation in its entirety is as follows: “Despain wrote [Plaintiff] . . . and told [him] that [he] would not be
considered for a special attention release by the medical bureau.” (Id. at 3-4.) However, “[t]here is no constitutional
or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “Parole is a privilege,” not a
constitutional right. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992). Moreover, it is well established
that the Utah parole statute does not create a liberty interest entitling prisoners to federal constitutional protection.
See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Because Plaintiff has no substantive liberty interest in
parole under the Federal Constitution, he may not in this federal suit challenge the decision to deny him a chance at
parole. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). ”The dispositive
question is ‘whether the violative nature of the particular conduct
is clearly established.’“ Mullenix, 577 U.S. at 12 (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 742 (2011)). Accordingly, the Supreme
Court has repeatedly admonished circuit courts “not to define
clearly established law at a high level of generality.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018). Though “a case directly on
point” is not required, “existing precedent must have placed the
constitutional question regarding the illegality of the defendant’s
conduct beyond debate.” Cummings v. Dean, 913 F.3d 1227, 1239
(10th Cir.), cert. denied sub nom. Cummings v. Bussey, 140 S. Ct.
81 (2019).
“Ordinarily . . . there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of
authority from other [circuits] must have found the law to be as the
plaintiff maintains.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.
2012) (internal quotation marks omitted).

Ullery, 949 F.3d at 1291, 1300 (other citations omitted); see also Watson v. Univ. of Utah Med.
Ctr., 75 F.3d 569, 577 (10th Cir. 1996) (stating burden “quite heavy” because “plaintiff must do
more than simply allege the violation of a general legal precept [and] . . . must ‘instead
demonstrate a substantial correspondence between the conduct in question and prior law
allegedly establishing that the defendant’s actions were clearly prohibited’“) (first ellipses in
original) (quoting Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992) (quoting Harlow, 457 U.S.
at 818)).
In Plaintiff’s response to the motion to dismiss, he ignored Defendants’ qualified-
immunity defense, citing no cases to try to carry his burden of showing clearly established
federal law existed that should have alerted defendants that their alleged specific behavior
violated Plaintiff’s constitutional rights. (ECF No. 42.) In his response to Defendants’ request
for reconsideration of the Order denying their Motion to Dismiss, Plaintiff vaguely attempts to
carry his burden. (ECF Nos. 45, 48, 53.) There he inexplicably calls Defendants qualified-
immunity defense moot, saying simply, “See the following cases please.” (ECF No. 53, at 3
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding in Fourth Amendment case that
district judges “should be permitted to exercise their sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances of the particular case at hand”); Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(holding, in case of alleged failure to protect transsexual inmate from placement in general
population in which assault occurred, that prison officials may not “be found liable under the
Eighth Amendment for denying an inmate humane conditions of confinement unless the officials
knew of and disregards an excessive risk to inmate health or safety”); Wilson v. Seiter, 501 U.S.
294, 296, 303 (1991) (holding when inmate alleged cruel and unusual punishment--regarding

conditions of confinement like overcrowding, noise, temperature, ventilation, and cleanliness--
that lower courts were required to inquire into prison officials’ state of mind, applying
“deliberate indifference standard”); Estelle v. Gamble, 429 U.S. 97, 102-04 (1976) (holding in
case with allegations of inadequate medical care that Eighth Amendment “proscribes more than
physically barbarous punishments,” also establishing “government’s obligation to provide
medical care for those whom it is punishing by incarceration”); Pierson v. Ray, 386 U.S. 547,
549, 553, 557 (1967) (holding in § 1983 case, asserting false arrest and imprisonment, that judge
over criminal case was immune from liability because acts committed within judicial discretion
and arresting police officers had access to “defense of good faith and probable cause”).)
Having comprehensively reviewed each of these cases in the context of Plaintiff’s

allegations and claims here, the Court concludes that Plaintiff apparently cited these cases for the
broad principles they set forth, not for their factual and legal similarity to his case in a way that
would have warned Defendants that their behavior was unconstitutional. He has failed to carry
his burden of showing clearly established law placed Defendants on adequate notice of
constitutional boundaries specific to his claims.
Having thoroughly evaluated Plaintiff’s filings after the motion to dismiss, (ECF No. 42,
50, 53, 54), the Court concludes that Plaintiff has not met his burden to show his “right was
clearly established at the time of the defendant’s conduct.” Ullery, 949 F.3d at 1289. “[I]f the
plaintiff fails to establish either prong of the two-pronged qualified-immunity standard, the
defendant prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016).
Accordingly, Plaintiff’s cruel-and-unusual-punishment claims are dismissed.
Although the Court finds Plaintiff has not met his burden, the Court also agrees with the

Defendants’ more substantive analysis. The Court refers in particular to the arguments
Defendants set forth in their Motion to Alter or Amend Judgment (ECF No. 48), in which they
discuss why the law does not clearly establish that a correctional officer violates the Eighth
Amendment by (1) “providing inmates on a gang unit with items commonly found in prisons;”
(2) “maintaining a top bunk assignment where the inmate does not request a bottom bunk and is
not harmed by the top bunk assignment;” or (3) “denying an inmate’s compassionate release
request.” (ECF No. 48 at 6, 8, 9.) For those independent reasons, the Court dismisses Plaintiff’s
claims.
III. CONCLUSION
Accordingly, IT IS ORDERED that:

(1) Defendants’ Motion to Alter or Amend Judgment is GRANTED. (ECF No. 48.)
(2) Defendants’ Motion to Stay is DENIED as moot. (ECF No. 49.)
(3) The Court’s Memorandum Decision and Order Denying Defendants’ Motion to
Dismiss is VACATED. (ECF No. 45.)
(4) Defendants’ Motion to Dismiss is GRANTED. (ECF No. 40.)
(5) Plaintiffs claims in his Third Amended Complaint (ECF No. 35) are DISMISSED on
the basis of qualified immunity.
(6) With no controversy remaining in this Court, this action is CLOSED.
DATED this 30th day of March, 2022.
BY THE COURT:

United States District Court

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10685331. Public record. Not legal advice.