United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants El Paso County Board
of County Commissioners (“El Paso County”), Bill
Elders (“Elders”),  Rob King (“King”),
Zachary Margurite (“Margurite”), Canyon Parcell
(“Parcell”), and Michael Kimberlain's
(“Kimberlain”) Motion to Dismiss Pursuant to
Fed.R.Civ.P. 8, 12(b)(1), and 12(b)(6) [#19] (the
“Motion”). Plaintiff, who proceeds as a pro se
litigant,  filed a Response [#22] in opposition, and
Defendants filed a Reply [#23]. The Court has reviewed all
briefing on the Motion, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#19] is GRANTED
in part and DENIED in part.
Summary of the Case
is an inmate at the Bent County Correctional Facility in Las
Animas, Colorado. See Notice of Change of Address
[#26]. Defendants are employees of El Paso County, where
Plaintiff was previously incarcerated. Am. Compl.
[#6] at 2-5. On May 10, 2016, Plaintiff initiated this case
by filing a Prisoner Complaint [#1]. On May 12, 2016,
Plaintiff was ordered to file an amended complaint.
Order [#5]. Plaintiff filed the Amended Complaint
[#6] on June 9, 2016, in which he asserts four claims.
brings Claim One, titled “Denial of Due Process,
” against Defendants Margurite, Lieutenant John Does #5
and #6,  and Jane Doe (#14) based on his placement
in Special Detention and denial of privileges for several
months. Am. Compl. [#6] at 7-8. Plaintiff brings
Claim Two, titled “Deliberate Indifference, ”
against Defendant El Paso County for exposure to materials in
the jail that caused him respiratory problems and eye
irritation. Id. at 9. Plaintiff brings Claim Three,
titled “Excessive Use of Force, ” against
Defendants Parcell, Kimberlain, John Does #12 and #13,
Sergeant John Does #7 and #8, Elders, and King related to
Plaintiff's alleged beating by prison officials.
Id. at 10-11. Claim Four is asserted against
Defendant Correct Care Solutions, who was only recently
served and has not yet filed an Answer or other response to
the Amended Complaint [#6]. Defendants' Motion [#19] does
not address Claim Four.
seeks declaratory and injunctive relief, as well as
compensatory and punitive damages. Am. Compl. [#6]
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir. 1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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 the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (alteration in original)
(internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (first
alteration in original) (citation and internal quotation
Rule 8, a plaintiff must provide a ‘short and plain
statement of the claim showing that the pleader is entitled
to relief.'” Tuttamore v. Lappin, 429 F.
App'x 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P.
8(a)(2)). As with Rule 12(b)(6), “to overcome a motion
to dismiss, a plaintiff's allegations must move from
conceivable to plausible.” Id. Indeed,
“Rule 8(a)'s mandate . . . has been incorporated
into the 12(b)(6) inquiry.” United States ex rel.
Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th
Cir. 2010). Rule 8 enables “the court and the
defendants to know what claims are being asserted and to
determine how to respond to those claims.”
Tuttamore, 429 F. App'x at 689.
immunity shields government officials from individual
liability for civil damages when their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person in their position would
have known. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). When a defendant raises qualified immunity, the
burden shifts to the plaintiff to satisfy a strict two-part
test. Escobar v. Reid, 668 F.Supp.2d 1260, 1293 (D.
First, the plaintiff must demonstrate that the
defendant's actions violated a constitutional or
statutory right. Second, the plaintiff must show that the
constitutional or statutory rights the defendant allegedly
violated were clearly established at the time of the conduct
at issue. The question of whether the constitutional right
was clearly established must be asked in the context of the
particular case before the court, not as a general, abstract
matter. That is, [t]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether
it would be clear to a reasonable officer [in the
defendant's position] that his conduct was unlawful in
the situation he confronted. In order for a constitutional
right to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clear weight
of authority from other circuits must establish the
constitutional right. In other words, there must be case law
in which a constitutional violation was found based upon
Id. (alterations in original) (internal citations
and quotations omitted). Subsequent authority has clarified
that either part of the qualified immunity analysis may be
addressed by the Court first. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
Claim One: “Denial ...