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Manning v. Quick

United States District Court, D. Colorado

July 18, 2017

T. QUICK, Officer, Denver Women's Correctional Facility, TORREZ, Officer, Denver Women's Correctional Facility, A. MORA, Officer, Denver Women's Correctional Facility, Defendants.



         This matter comes before the court on a motion to dismiss (Doc. #43) filed on January 3, 2017, by Defendants Quick, Torrez, and Mora (“Defendants”).[1] Plaintiff Sheila Renee Manning (“Plaintiff”) filed a Response on February 20, 2017. Doc. #50. Defendants have not filed a Reply in support of their Motion. This case was assigned to the Magistrate Judge pursuant to the Order Drawing Case dated October 5, 2016. Doc. #21. Consent pursuant to 28 U.S.C. § 636(c) was obtained from all parties on July 10, 2017. Doc. #56. The court has carefully considered the motion and related briefing, the entire case file, and the applicable case law. For the following reasons, Defendants' Motion to Dismiss is granted.


         Pro se[2] Plaintiff Sheila Renee Manning seeks damages pursuant to 42 U.S.C. § 1983 (“§ 1983”) and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-65, on the basis that Defendants (1) used excessive force against her[3] and (2) refused to accommodate her disabilities. See Doc. #20 at 3-6. At the time of these alleged violations Plaintiff was an inmate in the custody of the Colorado Department of Corrections at the Denver Women's Correctional Facility (“DWCF”).[4] Plaintiff filed her original Complaint in this action (Doc. #1) on June 9, 2016, naming Taylor-Lucas, Timmerman, Davis, Golding, Johnson, Quick, Torrez, and Mora as Defendants. Plaintiff simultaneously filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Doc. #2), which Judge Gallagher granted on June 10, 2016. Doc. #5. After being ordered by the court to cure deficiencies she then filed a series of Amended Complaints, culminating in her Fourth Amended Complaint (Doc. #20) which was filed on September 26, 2016 and accepted by the court on October 5, 2016 (Doc. #21).

         Plaintiff alleges the following relevant facts[5] in that Amended Complaint. Plaintiff has had five knee surgeries, and has one knee cap with three screws and no cartilage. Doc. #20 at 5. Plaintiff has also repeatedly alleged that she has “physical and mental disorders” and is “mentally retarded and developmentally delayed.” Id. at 3, 10. Plaintiff further alleges that she was denied access to (1) an ADA cell, and (2) an ADA shower and shower chair. Id. at 5. She was also (3) refused an employment position as a porter, (4) not allowed to go to the gym, and (5) forced to use “four flights of stairs” rather than the elevator. Id. While Plaintiff does not specify which Defendants denied which accommodations, she alleges that Mora “refuse [sic] me accomadations [sic] . . . on September 19, 29, 2016, ” that “Torrez refuses to accomadate [sic] programs on September 12, 13, 19, 20, 2016, ” and that “Officers Torrez, Mora, Quick . . . refuse me accomadations [sic].” Id. As for her Eighth Amendment claim, Plaintiff alleges that on February 10, 2016, “Officers Quick and Torrez took me back to my cell and pulled my hands through the tray slot with wrist restraints on.”[6] Id. at 4. Plaintiff further alleges that Torrez repeated this action on March 11, 2016. Id.

         Defendants Quick, Torrez, and Mora filed their Motion to Dismiss on January 3, 2017. Doc. #43. Quick and Torrez argue that they are entitled to qualified immunity with regards to Plaintiff's excessive force claims since any force they used against Plaintiff did not rise to the level of being “excessive.” See Doc. #43 at 9-11. Moreover, all three Defendants argue that Plaintiff has not sufficiently made out an ADA claim against them since she has not specifically alleged that they denied her access to accommodations because of her disability. See Id. at 7-8. Because Plaintiff has not filed an official Response to the Motion to Dismiss, the court construes her letter filed on February 17, 2017, (Doc. #50), as her Response.[7] This one page Response does little more than reiterate that she wants to continue pressing her claims against Defendants Quick, Torrez, and Mora, and does not present any supporting case law. See Doc. #50.


         Under 12(b)(6) a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations … and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “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.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” “The burden is on the plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         Because Ms. Manning is appearing pro se, the court “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 Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that she has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court's role is not to act as the pro se litigant's advocate); 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”). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); Fed.R.Civ.P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).


         Plaintiff alleges that Defendants Quick, Torrez, and Mora violated the ADA by refusing to accommodate her disabilities. See Doc. #20 at 5. Plaintiff also alleges that Quick and Torrez (but not Mora) violated her Eighth Amendment Right by using excessive force against her. Id. at 4. Because Quick and Torrez did not use excessive force against Plaintiff as a matter of law, they are entitled to qualified immunity with regards to these claims. Moreover, Plaintiff has failed to sufficiently allege that Defendants discriminated against Plaintiff on the basis of her disability. Consequently, the court will grant Defendants' Motion to Dismiss.

         As an initial matter, the court notes that Judge Gallagher has made a determination as to whether Plaintiff's claims were brought against Defendants in their individual or official capacities. See Doc. #21 (Order, Oct. 5, 2016). Because Plaintiff is pro se, Judge Gallagher allowed her § 1983 claims to proceed against Defendants in their individual capacities and her ADA claims to proceed against Defendants in their official capacities. Id. at 3.[8]

         A. Excessive Force Claims and Qualified Immunity

         Under the framework laid out by the Supreme Court, government officials are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Consequently, a defendant is entitled to qualified immunity if either (1) the plaintiff's alleged facts do not demonstrate that the defendant violated a constitutional right or (2) it was not clearly established that the defendant's conduct was unconstitutional at the time when it occurred. Pearson v. Callahan, 555 U.S. 223 (2009). Because the facts that Plaintiff alleges cannot establish that Defendants Quick and Torrez used excessive force against ...

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