United States District Court, D. Colorado
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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.
Magistrate Judge Recommendation.
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).
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)).
Pro Se Party.
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 ...