United States District Court, D. Colorado
AMENDED ORDER ON DEFENDANT'S MOTION
Michael E. Hegarty, United States Magistrate Judge.
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
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.
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).
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.
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.
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.
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
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).
Defendant argued that an amendment to add an 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. Plaintiff
responded that his “low intellectual level and/or
inability to read and write is the main and only factor which
caused his untimely tort action.” Resp., ECF No. 60 at
2. According to Plaintiff, his “inability to read and
write, and lack of legal pedagogy equate[ ] [to] his not
having knowledge of the required 60 days in which to pursue
the tort issue.” Id.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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.
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.
Treatment of a Pro Se Plaintiff's
federal court must construe a pro se plaintiff's
“pleadings liberally, applying a less stringent
standard than is applicable to pleadings filed by lawyers.
[The] court, however, will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (quotations and citations omitted). The Tenth
Circuit interpreted this rule to mean, “if the court
can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so despite
the plaintiff's failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). However, this interpretation is
qualified in that it is not ...