United States District Court, D. Colorado
HAZHAR A. SAYED, Plaintiff,
LT. PAGE VIRGINIA, Sterling Corr. Facility, CAPT. MICHAEL TIDWELL, Sterling Corr. Facility, SGT. HRADECKY, Sterling Corr. Facility, and UNKNOWN JOHN DOE 1, C/O Sterling Corr. Facility, and UNKNOWN JOHN DOE 2, Sterling Corr. Facility, Defendants.
ORDER SUSTAINING OBJECTIONS IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
WILLIAM J. MARTÍNEZ JUDGE
prisoner civil rights action brought pursuant to 42 U.S.C.
§ 1983, Plaintiff, Hazhar A. Sayed
(“Plaintiff”), brings claims for deprivation of
his First and Eighth Amendment rights against Defendants who
are correctional officials at the Colorado Department of
Corrections' Sterling Correctional Facility
(“SCF”). Defendants moved to dismiss (ECF No.
37.) U.S. Magistrate Judge Michael J. Watanabe entered a
Report and Recommendation recommending that Defendants'
motion be granted. (ECF No. 55 (“the
Recommendation”).) Now before the Court are Judge
Watanabe's Report and Recommendation
(“Recommendation”) (ECF No. 55) and
Plaintiff's Objection thereto (ECF No. 58); as well as
Plaintiff's subsequent Motion for Status (ECF No. 59) and
request for Ruling and/or Hearing (ECF No. 60). For the
reasons set forth below, Plaintiff's Objection is
sustained in part and overruled in part.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district court judge “determine de
novo any part of the magistrate judge's
[recommendation] that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he
district court judge may accept, reject, or modify the
recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Id. An objection is proper if it is filed within
fourteen days of the Magistrate Judge's recommendations
and is specific enough to enable the “district judge to
focus attention on those issues-factual and legal-that are at
the heart of the parties' dispute.” United
States v. 2121 East 30th Street, 73 F.3d 1057, 1059
(10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)).
the Court is mindful of Plaintiff's pro se
status, and accordingly reads his pleadings and filings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Trackwell v. United States Gov't, 472
F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot
act as advocate for Plaintiff, who still must comply with the
fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); see also Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).
Federal Rule of Civil Procedure 12(b)(6), 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). In evaluating such a motion, a court must
“assume the truth of the plaintiff's well-pleaded
factual allegations and view them in the light most favorable
to the plaintiff.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
following facts are drawn from the well-pled facts of
Plaintiff's complaint and treated as true.
was a prisoner at Sterling Correctional Facility
(“SCF”) when the incident giving rise to this
litigation occurred. (ECF No. 11 at 4, ¶3.) On May 2,
2015, Plaintiff was ordered to the vestibule area of his
living pod, where he was met by five Correctional officers,
Defendants Tidwell, Virginia, Hradecky, and Unknown John Does
1 and 2 (“Defendants”). (ECF No. 11 at 4,
¶¶ 3-4.) Plaintiff was asked to step outside to
discuss a grievance he had filed, alleging a violation of his
rights under the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. §§ 2000cc, et seq.,
Id. ¶ 5. Once outside, Defendant Tidwell
immediately struck Plaintiff on the right side of
Plaintiff's face with his fist. Id. After being
struck, Plaintiff “staggered backwards” and
raised his hands to fend off additional blows. Id.
¶ 6. When Plaintiff asked for an explanation for why he
was hit, Defendant Tidwell “screamed” at
Plaintiff that he was “snitching and causing problems
for the [M]ajor and if [Plaintiff] didn't stop, he would
hit [Plaintiff] every time he saw [Plaintiff].”
Id. Plaintiff attempted to move away and “was
immediately tackled by Defendant Hradecky and Unknown John
Doe 1 and Unknown John Doe 2.” Id. ¶ 7.
All of the named Defendants, except Defendant Virginia,
“forcibly restrained” Plaintiff while he
“was punched and kicked by all.” (Id. at
4a, ¶ 8.) “Specifically, Defendant Tidwell struck
[Plaintiff] in the head and neck area repeatedly while
[Plaintiff] was restrained.” Id.
the punches and kicks, and while Plaintiff was still
restrained, Defendant Tidwell “reached down, grabbing
[Plaintiff's] right hand's little finger and twisted
it, breaking it willfully and intentionally.”
Id. ¶ 9. Defendant Tidwell then told
Plaintiff, “‘we're even now.'”
Id. Defendant Tidwell then used the intercom system
to announce to all inmates, “‘hey everybody,
[Plaintiff] is a federal informant and a snitch and he's
serving a sentence for sexual assault and has a fake
mittimus.” Id. ¶ 10. Defendant Tidwell
then turned to Plaintiff and said, “‘See how we
deal with snitches in SCF.'” Id. Plaintiff
was then placed in segregation and then transferred to the
Colorado State Penitentiary (CSP). Id. ¶ 11.
Although not personally participating in the assault,
Defendant Virginia was present and acted with
“deliberate indifference and failed to protect
[Plaintiff] from being assaulted” by the other
Defendants. (Id. at 5, ¶ 14-15.)
result of his transfer, Plaintiff allegedly suffered a loss
of personal property valued at approximately $1, 500.00
dollars. Id. Plaintiff was also served with
disciplinary reports, which required him to pay $301.50 for
March 20, 2017, named Defendants filed a Motion to Dismiss
(“Motion”) under Federal Rule of Civil Procedure
12(b)(6). (ECF No. 37.) The Motion was referred to U.S.
Magistrate Judge Michael J. Watanabe for a recommended
disposition. (ECF No. 19.) On June 7, 2017, Judge Watanabe
issued his recommendation that the motion be granted. (ECF
No. 55.) Plaintiff filed a timely objection to the
Recommendation. (ECF No. 58.) Defendants did not respond to
moved to dismiss Plaintiff's claims under Federal Rule of
Civil Procedure 12(b)(6), contending that they “are
entitled to qualified immunity” and that “Sayed
fails to allege that Defendants violated his clearly
established constitutional rights.” (ECF No. 37 at 3.)
Defendants also argue that “Sayed's § 1983
claims are barred under Heck v. Humphrey, 512 U.S.
477 (1994), because “[a] judgment in favor of Sayed
regarding his § 1983 claims, all of which arise from the
May 2, 2015 assault at SCF, would necessarily imply the
invalidity of his convictions” in Colorado state court
arising out of the same incident. (ECF No. 37 at 4.) Lastly,
Defendants argue that “[Plaintiff] fails to state a
cognizable deprivation of property claim.”
(Id. at 4.)
Recommendation, Judge Watanabe found as follows: (1)
“[A]ll of [P]laintiff's claims brought under §
1983 relating to the May 2, 2015 incident are barred by
Heck;” and (2) Plaintiff failed to allege that
any defendant personally participated in the destruction of
his property. (ECF No. 55 at 7, 8.) He therefore recommended
that the Defendants' Motion to Dismiss be granted and
that Plaintiff's claims be dismissed with prejudice.
(Id. at 8.)
objects generally to the Recommendation's finding that he
failed to state a cognizable claim under the First and Eighth
Amendments. (ECF No. 58.) Specifically, Plaintiff objects to:
(1) the Recommendation's standard of review under Rule
12(b)(6) (id. at 7); (2) the reasoning under the
Heck doctrine (id. at 6); and (3) the
finding that the named Defendants are not personally liable
for the destruction of plaintiff's personal property.
(id. at 8.).
their Motion to Dismiss, Defendants very briefly and only in
passing refer to qualified immunity and state that
“[P]laintiff fails to allege that [D]efendants violated
his clearly established constitutional rights.” (ECF
No. 37 at 3.) As will be discussed further, infra,
apart from the mere reference to qualified immunity in their