United States District Court, D. Colorado
Kathleen M. Tafoya United States Magistrate Judge.
case comes before the court on “Defendants' Motion
to Dismiss” (Doc. No. 19 [Mot.], filed November 21,
2016). Plaintiff did not file a response.
OF THE CASE
proceeding pro se, is an inmate incarcerated at the
Denver Women's Correctional Facility (“DWCF”)
within the Colorado Department of Corrections
(“CDOC”). (Doc. No. 1 [Compl.] at 2.) Plaintiff
alleges from December 2015 through May 27, 2016, she was
housed in a special needs mental health unit of DWCF known as
Unit Six. (Id. at 4.) Plaintiff states she
voluntarily chose to enroll in a Residential Treatment
Program (“RTP”) because she recognized she had
“exhibited certain actions that required mental health
intervention.” (Id.) Plaintiff alleges
sometime during March or April 2016, seven CDOC officers
entered her cell “with a malicious and sadistic intent
to cause harm, pain and suffering.” (Id.) She
contends she was awakened by at least five officers standing
over her who yelled at her to get up over and over again.
(Id.) Plaintiff alleges the five officers dragged
her from her bed, across the room on the floor, and out into
the day room area. (Id.) Plaintiff states she then
was handcuffed with her hands behind her back while an offer
attached a tether chain to the handcuffs. (Id.)
Plaintiff alleges she was slammed against a wall and then
forced onto her knees by the tether, which caused abrasions
on her knees. (Id. at 5-11.) Plaintiff alleges a
female officer then sat on her back, causing aggravation to a
pre-existing difficulty with a “curve in [her
back.” (Id. at 5.) Plaintiff states
“[i]t was vaguely mentioned that [she] was 1.)
Interferring [sic] with count, and 2.) Unresponsive at count
time.” (Id.) Plaintiff states she screamed at
the officers that they were hurting her, but their actions
continued. (Id.) Plaintiff states she was taken back
to her cell in handcuffs, still attached to the tether.
(Id.) Plaintiff alleges a female pulled on the
tether with such force that she was severely bruised on her
hands, arms, and wrists. (Id.) Plaintiff states she
then was removed from her cell and put into an observation
room for offenders on suicide watch. (Id.) Plaintiff
alleges she was cuffed to a metal table in the observation
room for hours. (Id.) An officer walked into the
room and asked what happened to her leg, which was bleeding
through her thermal pants, and then called in another officer
to see her and a nurse to bandage her leg. (Id.)
Plaintiff alleges the next morning she was swollen and
covered in bruises. (Id.)
alleges prior to this incident, she had been racially
profiled and treated with extreme indifference and prejudice
because she is a Muslim from Libya, Africa. (Id.)
Plaintiff states her treatment continues to be harsh, and she
has filed numerous grievances related to her treatment.
(Id.) Plaintiff alleges her treatment on the night
she alleges she was dragged out of her cell was in
retaliation for her filing the grievances and to “teach
[her] a lesson.” (Id.)
assert claims, pursuant to 42 U.S.C. § 1983, for
excessive force, retaliation, and discrimination.
(Id. at 7-9.) Plaintiff seeks punitive and
compensatory damages. (Id. at 11.)
move to dismiss the claims against them for lack of
jurisdiction and for failure to state a claim upon which
relief can be granted. (Mot.)
Pro Se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] [her] pleadings and other papers liberally
and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). See also Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (holding allegations of a pro se
complaint “to less stringent standards than formal
pleadings drafted by lawyers”). However, a pro
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). See also
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997) (court may not “supply additional factual
allegations to round out a plaintiff's complaint”);
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (the court may not “construct
arguments or theories for the plaintiff in the absence of any
discussion of those issues”). The plaintiff's
pro se status does not entitle [her] to application
of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
Subject Matter Jurisdiction
Rule of Civil Procedure 12(b)(1) empowers a court to dismiss
a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6) (2007). “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 ...