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Ali v. Alire

United States District Court, D. Colorado

April 21, 2017

EMAN ALI, Plaintiff,
v.
CAPTAIN ALIRE, LIEUTENANT TEL, SERGEANT COPELAND, SERGEANT GOODLOWE, UNNAMED JANE/JOHN DOE, UNNAMED JANE/JOHN DOE, OFFICER CORDOVA, and UNNAMED JANE/JOHN DOES, Defendants.

          ORDER

          Kathleen M. Tafoya United States Magistrate Judge.

         This case comes before the court on “Defendants' Motion to Dismiss” (Doc. No. 19 [Mot.], filed November 21, 2016). Plaintiff did not file a response.

         STATEMENT OF THE CASE

         Plaintiff, proceeding pro se[1], 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.)

         Plaintiff 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.)

         Plaintiffs 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.)

         Defendants 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.)

         STANDARDS OF REVIEW

         A. Pro Se Plaintiff

         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).

         B. Subject Matter Jurisdiction

         Federal 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).

         A Rule 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.

         C. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal 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 ...


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