United States District Court, D. Colorado
ORDER AND OPINION REGARDING DEFENDANTS' MOTION TO
B. SHAFFER UNITED STATES MAGISTRATE JUDGE.
matter comes before the court on a motion to dismiss (Doc.
#43) filed on January 3, 2017, by Defendants Quick, Torrez,
and Mora (“Defendants”). 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.
se 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
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”). 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).
alleges the following relevant facts 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.” Id. at
4. Plaintiff further alleges that Torrez repeated this action
on March 11, 2016. Id.
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. 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.
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).
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).
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).
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.
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
Excessive Force Claims and Qualified Immunity
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 ...