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Hall v. Shumard

United States District Court, D. Colorado

February 21, 2017

CARL HALL, Plaintiff,
v.
SHUMARD, Lt., FNU, in his individual capacity, MONAREZ, Lt., FNU, in his individual capacity, BUTZ, C.O., FNU, in his individual capacity, CATES, C.O., FNU, in his individual capacity, JOHN OLIVER, Warden, in his individual and official capacity, D. RHODES, in his individual and official capacity, and FEDERAL BUREAU OF PRISONS, in its official capacity, Defendants.

          ORDER

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants Lieutenant Shumard, Lieutenant Monarez, Correctional Officer Butz, and Correctional Officer Cates' motion to dismiss [ECF No. 41]; defendants Warden Oliver, Special Investigative Agent Rhodes, and the Federal Bureau of Prisons' (BOP) motion to dismiss [ECF No. 60]; and the respective recommendations of Magistrate Judge Michael J. Watanabe [ECF Nos. 53, 97]. Judge Watanabe recommends that this Court grant in part and deny in part defendants Shumard, Monarez, Butz, and Cates' motion, ECF No. 53 at 6, and grant defendants Oliver, Rhodes, and the BOP's motion, ECF No. 97 at 9. His recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R. Civ. P. 72(b).

         BACKGROUND

         A detailed summary of the procedural and factual background of this case was provided in Judge Watanabe's reports. In brief, plaintiff Carl Hall alleges that he was physically and sexually assaulted by defendants Shumard, Monarez, Butz, and Cates on August 28, 2014. ECF No. 40 ¶¶ 28-55. He views this alleged attack as retaliation for repeatedly filing grievances with the prison about staff mistreatment of him. Id. ¶¶ 29-40. He also asserts that defendants Oliver, Rhodes, and the BOP failed to investigate the alleged assault and failed to protect him afterward by not placing him in protective custody, and instead transferring him to the United States Penitentiary Administrative Maximum Facility (ADX) without regard for the effects of that facility's extreme solitary confinement on his mental health. ECF No. 40, Ex. 1 ¶¶ 87-90, 101- 14.

         Mr. Hall's Second Amended Complaint raises four causes of action based on these events. Specifically, he claims to have suffered violations of his Eight Amendment rights due to (1) defendants Shumard, Monarez, Butz, and Cates' use of excessive force against him, (2) defendants Oliver and Rhodes' failure to protect him from abuse, and (3) the BOP's failure to provide him with adequate mental health treatment. ECF No. 40 ¶¶ 27-77; ECF No. 40, Ex. 1 ¶¶ 78-114. He also claims retaliation by defendants Shumard, Monarez, Butz, Cates, Oliver, and Rhodes for filing grievances with the prison, which violates his First Amendment rights. ECF No. 40 ¶ 29. These constitutional claims are brought against the federal officer defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against the BOP under 28 U.S.C. § 1331.

         Defendants have moved to dismiss these claims. ECF Nos. 41, 60. Judge Watanabe recommended that this Court grant defendants' motions insofar as Mr. Hall seeks damages based on First Amendment retaliation; grant the motions with respect to defendants Oliver, Rhodes, and the BOP; and deny the motions with respect to the remaining claims against defendants Shumard, Monarez, Butz, and Cates. ECF No. 53 at 6; ECF No. 97 at 10. Mr. Hall has objected to several portions of these recommendations, first pro se, ECF No. 76, and later through counsel, ECF No. 113.

         STANDARD OF REVIEW

         A. Magistrate Judge Recommendation.

         When a magistrate judge makes a recommendation on a dispositive motion, the district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is sufficiently specific if it “focus[es] the district court's attention on the factual and legal issues that are truly in dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In the absence of timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

         B. Rule 12(b)(6).

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See Twombly, 550 U.S. at 556. “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).

         C. Pro Se Party.

         When a case involves a pro se party, the court will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be ...


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