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Howard v. Estrada

United States District Court, D. Colorado

May 30, 2017

RONNIE LEE HOWARD, Plaintiff,
v.
K. ESTRADA, Defendant.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          Michael E. Hegarty, United States Magistrate Judge.

         Before the Court is the Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint [filed April 4, 2017; ECF No. 39]. The motion is briefed to the extent required by law, and the Court finds that oral argument will not assist in the adjudication of the motion. Based on the record and for the reasons that follow, the Court grants the Defendant's motion.[1]

         BACKGROUND

         Plaintiff initiated this lawsuit on July 15, 2016, then filed the operative Second Amended Complaint on December 1, 2016 in accordance with Magistrate Judge Gallagher's orders during initial review.

         I. Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in the Second Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On August 7, 2014, Defendant K. Estrada, a corrections officer, lost control of an 800-pound food cart, which violently crashed into Plaintiff's wheelchair, causing him to fall and be knocked unconscious. Plaintiff suffered extreme pain in his neck and back area and endured painful headaches. He is still suffering from daily pain.

         According to Plaintiff, Defendant received training that he should never push the heavy food cart alone and that the area around the food cart should be secured from staff and inmates before moving it. Despite this training, Defendant pushed the food cart by himself and did not secure the area.

         II. Procedural History

         Based on these factual allegations, Plaintiff claims Defendant violated his Fifth (due process) and Eighth Amendment rights against deliberate indifference by a correctional officer. Am. Compl., ECF No. 18. Plaintiff requests “punitive damages in the sum of 2.2 million dollars for irreparable harm based on reckless disregard for Mr. Howard's safety and caused injuries.” Id. at 4.

         Defendant filed the present motion arguing the Plaintiff fails to state plausible claims for violations of his constitutional rights under both the Fifth and Eighth Amendments. In addition, Defendant claims he is entitled to qualified immunity in his individual capacity.

         Plaintiff counters that Defendant has an “authorized duty to protect a prisoner from even his reckless dangerment [sic]”; “there is no societal interest in protecting those uses of a prison guard's discretion that amounts to reckless or callous indifference to the rights and safety of the prisoners in his charge”; and Plaintiff has been approved for back surgery to correct the injuries he suffered and he is no longer able to continue his job assignment due to his injuries. See Resp., ECF No. 46.

         At the Scheduling Conference in this case, Plaintiff repeatedly referred to the alleged incident involving the Defendant as an “accident.” The Court expressed its intention to allow Plaintiff to amend the operative pleading to add a claim under the Federal Tort Claims Act (“FTCA”) and requested that defense counsel determine whether Plaintiff exhausted such a claim as required under the Act. On April 28, 2017, Defendant filed a Status Report in which defense counsel confirmed that Plaintiff indeed filed the necessary SF-95 complaint form on December 9, 2014 (ECF No. 51-1 at 1-8), and such claim was denied on October 14, 2015 (ECF No. 51-1 at 11). However, Defendant argued an amendment to add a FTCA claim would be futile because the Plaintiff failed to file a lawsuit alleging an FTCA claim within six months after the claim was administratively denied. Status Report, ECF No. 51.

         LEGAL STANDARDS

         I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         II. Treatment of a Pro Se ...


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