United States District Court, D. Colorado
Vladimir Bernard, Plaintiff, Pro se, Denver, CO.
For Cole Britton, Corporal, Defendant: Cathy Havener Greer, LEAD ATTORNEY, Wells, Anderson & Race, LLC, Denver, CO.
RECOMMENDATION ON DEFENDANT CORPORAL COLE BRITTON'S MOTION TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (Docket No. 21)
Michael J. Watanabe, United States Magistrate Judge.
This case is before the undersigned pursuant to an Order Referring Case entered by Judge William J. Martinez on December 2, 2014 (Docket No. 27).
The pro se incarcerated plaintiff raised three claims against two defendants in his Prisoner Complaint brought pursuant to 42 U.S.C. § 1983. (Docket No. 1). However, following an Order issued by Judge Lewis T. Babcock (Docket No. 6), only one defendant and two claims remain, namely, plaintiff's Eighth and First Amendment claims (Claims One and Two) against defendant Corporal Cole Britton in which plaintiff alleges the following.
Claim One. Eighth Amendment Claim.
While incarcerated in the Lincoln
County Jail, toward the end of April 2014, plaintiff put in a medical kite
because he had an abscess in his mouth, which was causing severe pain and
swelling in his mouth. When plaintiff was called to medical, the nurse gave
plaintiff a dental form to complete and told plaintiff it was up to Corporal
Cole Britton to set up a dental appointment and get plaintiff to the dentist.
Plaintiff filled out the form and gave it to Britton, told him how much pain he
was in, and asked how long it would before he saw the dentist. Britton said he
did not know. Plaintiff then told Britton how if he did not get the situation
taken care of, the situation could turn very bad, possibly fatal. Britton smiled
and shrugged his shoulders, showing plaintiff that he could care less.
Over the next couple of weeks, plaintiff put in kite after kite, asking about going to the dentist. Only some of the kites that were answered and merely informed plaintiff that they had not forgotten about plaintiff. On June 22, 2014, plaintiff awoke due to severe, throbbing pain in his mouth and the side of his face. When he looked in the mirror, his face was so big, it looked as though he had a golf ball in his mouth. Plaintiff's request to go to the emergency room was denied, and he was denied medical treatment the next day. Officer Heather McKay talked to the Sheriff for plaintiff and explained plaintiff's situation, at which point the Sheriff put the nurse in charge of making the medical appointments. She got plaintiff an appointment for June 26, 2014. Plaintiff had his teeth pulled.
Claim Two. First Amendment Claim.
The Inmate Handbook states that outgoing mail is checked for contraband. On June 26, 2014, Officer Dale came into the dorm and sat down. Plaintiff opened a letter he had written to the Denver Post and showed Officer Dale there was no contraband inside and sealed it in front of him. The letter had the correct addresses on it, but plaintiff did not address it to the " Denver Post." Plaintiff simply said " Urgent." Officer Dale said he put the letter in the outgoing mail. The next morning, Officer Heather McKay came and asked plaintiff if he had written a letter to the Denver Post. Plaintiff asked her how she knew, and she said that someone told her and that the letter did not go out but was opened by Corporal Cole, who had possession of the letter. On June 30, 2014, Cole called plaintiff out of the dorm and brought plaintiff to the front where the Captain was located. The Captain had the plaintiff's letter, and it was open. Plaintiff asked why his letter was open and not sent out, and the Captain said it was addressed incorrectly. Plaintiff pointed out to him that it in fact was correct and told him the Corporal had opened it to see what it said. Plaintiff believed the Corporal knew plaintiff was writing about him, which was true. Plaintiff had explained to the Denver Post how the Corporal discriminated against plaintiff and was a racist. The Captain then gave plaintiff a blank envelope and told plaintiff to address it, and the Captain would take it to the Post Office himself. Plaintiff declined. Plaintiff claims the letter he sealed should have been sent out. He wants justice and claims racism should not be tolerated and his rights were violated.
Plaintiff seeks $3.5 million in damages. (Docket No. 1 at 9).
DEFENDANT'S MOTION TO DISMISS
Now before the court for a report and recommendation is Defendant Corporal Cole Britton's Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) (Docket No. 21). Defendant seeks dismissal of the Prisoner Complaint on the following grounds: (1) plaintiff failed to exhaust the Lincoln County grievance procedures for either claim and (2) Corporal Britton is entitled to qualified immunity. Plaintiff did not file a response. The court has carefully reviewed the motion and applicable Federal Rules of Civil Procedure and case law. In addition, the court has ...