Gee v. PachecoGee v. Pacheco
This matter is before the court on the motion of Public Justice, P.C., the American Civil Liberties Union, and the Prisoners’ Rights Project of the Legal Aid Society of the City of New York to file an amici brief urging amendment of the opinion filed on October 26, 2010. The motion for leave to file an amici brief is GRANTED and the Clerk is directed to file the proposed amici brief as of the date of the filing of the motion. Amici‘s request for the court to amend the opinion is GRANTED IN PART. An amended opinion is attached to this order.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
Donald Gee is a prisoner in the Wyoming State Penitentiary (WSP) who represents himself before this court. On January 27, 2006, he filed in the United States District Court for the District of Wyoming a pro se civil-rights action under
We have jurisdiction under
I. BACKGROUND
For his First Amendment claims, Mr. Gee alleged that Defendants (1) had violated his right to communicate with persons outside the prison; (2) had violated his right to access the courts by (a) confiscating his legal files and hindering his access to them, (b) hindering his communications with a jailhouse lawyer and denying access to a law library, (c) reviewing his legal files, and (d) interfering with his legal mail; and (3) had violated his right to be free from retaliation for having exercised his First Amendment rights. For his Eighth Amendment claims, he alleged that Defendants (1) had transferred him to out-of-state prisons where he suffered conditions amounting to cruel and unusual punishment; (2) had subjected him to inhumane transport and cell conditions in Wyoming, including the denial of basic necessities; (3) had denied him medical treatment or rendered inadequate medical treatment for various conditions, including a sleepwalking disorder; and (4) had assaulted him while transferring him within the prison. And under the Fourteenth Amendment, Mr. Gee (1) challenged Defendants’ decisions (a) to transfer him to prisons in other states, (b) to place him in an isolation cell and in segregation at WSP, and (c) to place information in his file and classify him at certain levels; (2) challenged particular disciplinary actions and hearings; (3) alleged that he had been deprived of
Defendants moved to dismiss the complaint for failure to state a claim.2 They submitted numerous documents in support of their motion. Although they did not prepare a formal Martinez report, see Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (per curiam) (recommending preparation by state prison officials of investigative report to present to federal court in § 1983 suit brought by prisoner), some of their submissions were grievances and grievance responses, typical of the types of documents usually tendered in a Martinez report. They also attached filings from Mr. Gee‘s prior lawsuits and a variety of prison records, including monitoring reports, internal communications, and memoranda.
The district court dismissed the claims in Mr. Gee‘s complaint on several different grounds. With respect to the First Amendment claims, it ruled that the access-to-the-courts claims failed to allege all the required elements of the cause of action and that the allegations supporting the other claims were too vague and conclusory or failed to establish unconstitutional regulation or action. It dismissed the Eighth Amendment claims because the record contradicted Mr. Gee‘s allegations of denial of basic necessities; some claims were
II. DISCUSSION
A. Legal Standards for Stating a Claim
We review de novo the grant of a
requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. . . . [A]n allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel
conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.
Id. at 556–57. The Court further indicated that an allegation of parallel conduct absent context implying a meeting of the minds “stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 557 (brackets and internal quotation marks omitted).
Although Twombly involved the Sherman Act, this court inferred that the “plausibility” standard need not be restricted to the antitrust context, but also should be applied to prisoner complaints. See, e.g., Howard, 534 F.3d at 1243; Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). The Supreme Court validated this interpretation in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), where it applied Twombly in the context of a prisoner challenge to the conditions of his confinement. A thorough discussion of Iqbal will be helpful.
Javaid Iqbal, a citizen of Pakistan and a Muslim, was arrested in the United States on charges of identification-document fraud after the terrorist attacks on September 11, 2001. See id. at 1943. He was detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York, where he was designated a person “of high interest” in the investigation of the terrorist attacks. Id. (internal quotation marks omitted). He was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU), in which detainees were kept in lockdown 23 hours a day and were subjected to other
The Supreme Court concluded that Iqbal had failed to state a claim entitling him to relief. See id. at 1954. Although the pleading standard of
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. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant‘s liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Id. (internal quotation marks and citations omitted).
“Taken as true,” the Court noted, “the[] allegations [in Iqbal‘s complaint] are consistent with [Ashcroft and Mueller‘s] purposefully designating detainees ‘of high interest’ because of their race, religion, or national origin.” Id. at 1951. But in light of “more likely explanations,” the Court concluded that Iqbal‘s allegations did “not plausibly establish this purpose.” Id. Because the September 11 terrorist attacks were perpetrated by 19 Arab Muslim hijackers who were members of al Qaeda, an Islamic fundamentalist group, it was “no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” Id. That the policies approved by Ashcroft and Mueller represented invidious discrimination was “not a plausible
Iqbal establishes the importance of context to a plausibility determination. The allegations in Iqbal‘s complaint had to be read in light of the events of September 11. 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. Consequently, a prisoner claim will often not be plausible unless it recites facts that might well be unnecessary in other contexts. For example, as we will discuss more fully below, a prisoner claim may not be plausible unless it alleges facts that explain why the usual justifications for the complained-of acts do not apply. When every prison places legitimate restrictions on prisoner mail, a First Amendment claim of interference with mail ordinarily is not plausible absent factual allegations showing at least that the alleged interference violated prison rules or that the applicable rule was invalid, either generally or in the specific context of the claim. Without such further allegations, the prisoner‘s First Amendment claim is no more plausible than an antitrust claim based solely on allegations of parallel conduct.
B. Materials That Can Be Reviewed on Motions Under Fed. R. Civ. P. 12(b)(6)
Before determining whether Mr. Gee‘s complaint adequately alleges his claims under the principles discussed above, we must address the materials examined by the district court in ruling on the
Generally, the sufficiency of a complaint must rest on its contents alone. See, e.g., Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010) (“The district court‘s disposition of the complaint was irregular. Although it characterized its action as a dismissal for failure to state a claim, the court did not restrict itself to looking at the complaint.“). There are exceptions to this restriction on what the court can consider, but they are quite limited: (1) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oxendine, 241 F.3d at 1275 (documents attached as exhibits to the complaint); (2) “documents referred to in the complaint if the documents are central to the plaintiff‘s claim and the parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); and (3) “matters of which a court may take judicial notice,” Tellabs, Inc., 551 U.S. at 322. Martinez reports are not within the exception unless “the plaintiff challenges a prison‘s policies or established procedures and the Martinez report‘s description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond.” Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). If a district court intends to rely on other evidence, it must convert the
Defendants relied on the Jacobsen exception, asserting that their attached documents were referred to in Mr. Gee‘s complaint and central to his claims. But we are not convinced that all the documents fit this exception, especially the voluminous grievances and prison responses. And even assuming that the Jacobsen exception applied and the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee‘s factual assertions and effectively convert the motion to one for summary judgment without notice to Mr. Gee. In two instances the district court adopted Defendants’ version of the facts in concluding that Mr. Gee did not state a claim. See R. Doc. 74 at 10 (dismissing claim of denial of hygiene items because of Defendants’ representations that Mr. Gee‘s hygiene items were available upon request); id. at 13 (with regard to allegations of assault, accepting Defendants’ representation that their review of videotapes showed no use of force).
Nevertheless, “[t]he failure to convert a
C. Mr. Gee‘s Complaint
1. Paragraphs That Sufficiently Allege a Constitutional Violation
A few of the paragraphs in Mr. Gee‘s complaint sufficiently allege a violation of the First or Eighth Amendment.
a. First Amendment Claims
(1) Right to Free Speech
Several of Mr. Gee‘s allegations involve his First Amendment right to free speech, in particular his right to communicate with persons outside the prison. See Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). In the First Amendment context, the Supreme Court has acknowledged that “federal courts must take cognizance of the valid constitutional claims of prison inmates. Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citation omitted). It also has recognized, however, that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Id. (internal quotation marks omitted). Accordingly, prisoners’ rights may be restricted in ways that “would raise grave First Amendment concerns outside the prison context.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). In particular, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is
The question with regard to Mr. Gee‘s First Amendment claims is, in light of Turner‘s deferential review and the plausibility standard of Twombly and Iqbal, how much does Mr. Gee have to plead to state an adequate claim? As discussed above, he has to plead sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. He must do more than plead facts that establish “a sheer possibility that a defendant has acted unlawfully,” or “facts that are merely consistent with a defendant‘s liability.” Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted). Because Turner allows prohibitions and restrictions that are reasonably related to legitimate penological interests, Mr. Gee must include sufficient facts to indicate the plausibility that the actions of which he complains were not reasonably related to legitimate penological interests. This is not to say that Mr. Gee must identify every potential legitimate interest and plead against it; we do not intend that pro se prisoners must plead, exhaustively, in the negative in order to state a claim. It is sufficient that he plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.
In paragraphs 27, 33, and 53, Mr. Gee alleges that on August 2, 2002, November 15, 2002, and September 4, 2005, Defendant Lopez intentionally, and for the purpose of harassing him, confiscated and destroyed letters sent to him by
In paragraphs 28 and 29, Mr. Gee alleges that on August 11 and August 12, 2002, Defendant Lopez returned to him outgoing letters that had “appropriate postage affixed . . . without reason for not sending [them] to the Post Office” for mailing. R. Doc. 1 at 11. A prisoner has a constitutional right to have his outgoing mail processed for delivery, absent legitimate penological interests to the contrary. See Treff, 74 F.3d at 195. Because Mr. Gee alleges that he placed adequate postage on his letters and that Defendant Lopez gave no reason for not processing his mail, these paragraphs state plausible claims of violations of Mr. Gee‘s First Amendment rights.
A closer question is raised by Mr. Gee‘s allegations regarding mail from his sister. Paragraph 13 alleges that on March 5, 2002, Defendant Pacheco had him placed in an isolation cell on incommunicado status, during which he was not
(2) Retaliation
Mr. Gee also alleges that Defendants took various actions against him in retaliation for exercising his First Amendment rights. It is well-settled that “[p]rison officials may not retaliate against or harass an inmate because of the
b. Eighth Amendment Claim
In paragraphs 69, 108, and 109, Mr. Gee alleges that as he was being transported between prisons, he informed Pacheco and Everett that he had not had food or water for more than 24 hours, but Everett said “‘he didn‘t care,‘” and both Defendants restrained him with a stun belt, belly chains, handcuffs, and a black box covering the handcuffs, which prevented him from accessing the food and water provided to the other prisoners being transported. R. Doc. 1 at 18–19, 26. Because these paragraphs allege sufficient facts to establish both elements of an Eighth Amendment claim—the objective prong of sufficiently serious deprivation and the subjective prong of deliberate indifference, see Estelle v. Gamble, 429 U.S. 97, 106 (1976); Howard, 534 F.3d at 1236–37 (discussing the elements of an Eighth Amendment claim)—they state a plausible claim for relief. See Schilling v. Transcor Am., LLC, No. C 08-941 SI, 2010 WL 583972, at *1, *12 (N.D. Cal. Feb. 16, 2010) (granting motion for class certification in lawsuit challenging transport company‘s policy of shackling prisoners and depriving them of access to regular food, water, exercise, beds, and bathrooms during transport).
Defendants argue that this claim is time-barred because it occurred on January 25, 2002, four years and two days before the district court received Mr. Gee‘s complaint. The forum state‘s statute of limitations for personal-injury
In his response to Defendants’ motion to dismiss, however, Mr. Gee contended that he was entitled to equitable tolling of the limitations period. Cf. United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir. 2008) (officials’ seizure of legal materials just before filing deadline would constitute “extraordinary circumstances” warranting 36-day equitable tolling in habeas case). State law governs tolling in
2. Allegations that Fail to State a Claim
In contrast to the paragraphs discussed above, the other allegations in Mr. Gee‘s complaint are insufficient to state a claim.
a. First Amendment Claims
Some of Mr. Gee‘s First Amendment allegations concern treatment imposed when he was not in Defendants’ physical custody, but in out-of-state prisons. Mr. Gee has not alleged sufficient facts to show that Defendants should be liable for his treatment at the hands of non-Defendants. See, e.g., Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) (“Individual liability under
Mr. Gee‘s bare allegations (1) of brief delays in mailing or receiving his correspondence and (2) of denial of his right to communicate with persons outside the prison when he was placed in isolation for approximately 25 hours on February 28, 2002, do not rise to the level of constitutional violations. As for his complaints that one letter was censored and that Defendants withheld and forced him to dispose of magazines to which he subscribed, such restrictions are sufficiently commonplace in the prison setting, see, e.g., Thornburgh, 490 U.S. at 415-19 (upholding restrictions on prisoners’ incoming mail); Smith, 899 F.2d at 944 (complaint about undelivered catalogues did not raise a constitutional issue), that his claim is not plausible absent allegations showing that the restrictions were imposed in violation of prison regulations or that the regulations invoked were unconstitutional in the circumstances. And Mr. Gee‘s allegation that Defendants transferred him to Nevada to prevent him from communicating with outside persons (because Nevada does not provide stamps to indigents) is too conclusory and speculative to satisfy Iqbal standards.
Mr. Gee also fails to state a proper claim of violations of his constitutional right to access the courts. He alleges that Defendants engaged in confiscating, reviewing, and hindering access to his legal files, hindering his communications with a jailhouse lawyer, denying him access to a law library, and interfering with his legal mail. But as the district court correctly held, a prisoner must demonstrate actual injury from interference with his access to the courts—that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 351–55 (1996). Mr. Gee‘s access-to-the-courts allegations fail this test.
Many of Mr. Gee‘s allegations do not connect a deprivation to any injury at all. Some allegations—such as his assertion that he “was unable to research and prepare initial pleading to claims of illegal disciplinary guilty findings, theft of
b. Eighth Amendment Claims
We next turn to Mr. Gee‘s Eighth Amendment claims. As with several of his First Amendment allegations, some of the complaint‘s paragraphs concern his conditions of confinement when he was not in Defendants’ physical custody, and he has not shown how Defendants were responsible for those conditions. See, e.g., Foote, 118 F.3d at 1423. Those allegations fail to state a proper claim.
Other paragraphs describe Defendants’ confiscating Mr. Gee‘s canteen items, depriving him of hygiene items for approximately 25 hours, and incarcerating him for four weeks in an isolation cell with limited outdoor recreation and lack of access to hygiene items. Again, however, deprivations of possessions and privileges are consistent with reasonable penological practices. The complaint‘s allegations contain insufficient factual information to conclude that a constitutional violation is plausible, rather than merely possible. See, e.g., Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (“Denial of recreation for a short period, per se, is not a constitutional violation.“); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (no Eighth Amendment violation when plaintiff was held in segregation without outdoor exercise for 28 days).
As for Mr. Gee‘s allegations concerning Dr. Coyle, the district court correctly observed that some allegations indicate not a lack of medical treatment, but a disagreement with Dr. Coyle‘s medical judgment in treating a condition with certain medications rather than others. For example, Mr. Gee alleges that he was not given the medications he desired for his headaches; but he admits being given other medications, so his complaint amounts to merely a disagreement with Dr. Coyle‘s medical judgment concerning the most appropriate treatment. An Eighth Amendment violation requires both a sufficiently serious medical need and deliberate indifference by the health-care provider. See Estelle, 429 U.S. at 106. Disagreement with a doctor‘s particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation. See id.; Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993).
Mr. Gee also complains that Dr. Coyle refused to recognize or treat a sleepwalking disorder, posttraumatic stress disorder, anxiety, and certain lumps that he is convinced must be tumors. Nothing in the complaint, however, alleges the existence of a sufficiently serious medical need, which is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor‘s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation
Finally, Mr. Gee‘s allegation that he was assaulted while being transported within WSP is not sufficiently specific to identify an Eighth Amendment violation. He uses the bare term assaulted without explaining what Defendants allegedly did. But not “every malevolent touch by a prison guard gives rise to a federal cause of action. . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers, violates a prisoner‘s constitutional rights.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal quotation marks omitted). Mr. Gee may have used the term assault to mean a
c. Fourteenth Amendment Claims
As with the majority of the complaint‘s allegations of violations of the First and Eighth Amendments, Mr. Gee‘s Fourteenth Amendment paragraphs also fail to state any claims.
His allegations in paragraphs 103 through 107 all concern events in May 2001, so the statute of limitations for these claims expired months before he filed his complaint in January 2006. On appeal he argues that his claims should not be time-barred, asserting that he was denied access to a law library and his essential legal property for almost four years. But he does not specify any excuse for delay after his return to custody in Wyoming in February 2005. Even assuming that Wyoming would recognize equitable tolling, it almost certainly would incorporate a diligence requirement. See Swinney v. Jones, 199 P.3d 512, 515 (Wyo. 2008) (“The very purpose of a statute of limitations is to require diligence and prevent parties from sleeping on their rights.” (internal quotation marks omitted)); Holland v. Florida, 130 S. Ct. 2549, 2565 (2010) (a habeas petitioner is entitled to equitable tolling only if he pursues his rights with reasonable diligence). And Mr. Gee‘s taking 11 months after his return to Wyoming to prepare his fact-based complaint was not adequate diligence. See Braxton v. Zavaras, 614 F.3d 1156, 1162 (10th Cir. 2010) (equitable tolling not warranted when prisoners failed to file suit within the ample time left after exhausting their administrative remedies); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.“). Because he has failed to establish that he acted with diligence, we affirm the dismissal with prejudice of all claims regarding events in 2001.6
With regard to Mr. Gee‘s allegations of being deprived of liberty without due process, he fails to establish the existence of a protected liberty interest. As a matter of law, he has no liberty interest in being incarcerated in a particular institution, see Meachum v. Fano, 427 U.S. 215, 223–25 (1976), or in discretionary classification decisions by prison officials, see Cardoso v. Calbone, 490 F.3d 1194, 1197–98 (10th Cir. 2007). Nor does he have a liberty interest in his conditions of confinement (including placement in isolation and segregation), unless the facts show that the conditions “impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (applying Sandin to regulations concerning prison
Similarly, Mr. Gee fails to plead sufficient facts to state a claim of deprivation of property without due process, because he does not allege the lack of an adequate state remedy for that deprivation. “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available,” and “the state‘s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy,” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, “[i]n order to state a claim under
Mr. Gee‘s claims regarding certain disciplinary proceedings in March and April 2002 fail because, as the district court determined, they were adjudicated in another lawsuit, and are therefore barred by claim preclusion. See Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999) (setting forth elements of claim preclusion). The district court properly referred to its records to dismiss these allegations. See Tellabs, Inc., 551 U.S. at 322; St. Louis Baptist Temple, 605 F.2d at 1172 (“[A] court may . . . take judicial notice, whether requested or not . . . of its own records and files, and facts which are part of its public records.“). Two additional paragraphs concern challenges to other disciplinary proceedings, but the allegations are too conclusory to support a claim that the proceedings violated due-process protections.
In paragraphs 141 and 142, Mr. Gee complains that prison officials searched his “cell without allowing him to observe the cell search, where all other prisoners housed on plaintiff‘s housing unit were allowed to observe[] their cell
Finally, Mr. Gee‘s remaining allegations of racism, discrimination, equal-protection violations, and retaliation are entirely conclusory. In paragraph 121, for example, he complains that officials have enacted a property policy that discriminates against indigent prisoners. But he fails to identify the policy or describe it well enough to convey the basis for his claim. Other paragraphs complain of actions taken as the result of discrimination, but he fails to explain the ground for the alleged discrimination.
3. Dismissal With Prejudice Without Opportunity to Amend
The district court dismissed the entire complaint with prejudice. But “dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Oxendine, 241 F.3d at 1275 (brackets and internal quotation marks omitted). “[T]he plaintiff whose factual allegations are close to stating a claim but are missing some important element
True, only a few of the complaint‘s 154 paragraphs state plausible claims for relief under Twombly and Iqbal. The district court, however, should have afforded Mr. Gee the opportunity to amend his complaint before dismissing every claim with prejudice. On remand, the district court shall allow Mr. Gee an opportunity to seek leave to file an amended complaint that satisfies Twombly and Iqbal, except for those claims that are barred by preclusion or the statute of limitations so that amending those claims would be futile. See Iqbal, 129 S. Ct. at 1954 (remanding for the court of appeals to determine whether to remand to the district court so the plaintiff could seek leave to amend his complaint).
III. CONCLUSION
The dismissal with prejudice of paragraphs 115–18 and 120, which are subject to claim preclusion, and paragraphs 3–6, 65–68, and 103–107, which are time-barred, is AFFIRMED. Thus, the dismissal of Defendants Lenny Stilwell and S. Kelley, who are named only in the precluded claims, is AFFIRMED. The remainder of the district court‘s judgment is REVERSED and the case is REMANDED for further proceedings, with instructions for the district court to allow Mr. Gee to seek leave to file an amended complaint, if he wishes, to be evaluated according to the standards set forth in this opinion. The district court