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Sayed v. Lt. Page Virginia

United States District Court, D. Colorado

November 13, 2017

HAZHAR A. SAYED, Plaintiff,
v.
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

         In this 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.

         I. STANDARD OF REVIEW

         When a 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)).

         Further, 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).

         Under 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).

         II. BACKGROUND

         The following facts are drawn from the well-pled facts of Plaintiff's complaint and treated as true.

         Plaintiff 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.

         After 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.)

         As a 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 restitution. Id.

         On 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 Plaintiff's Objection.

         III. ANALYSIS

         Defendants 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.)

         In his 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.)

         Plaintiff 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.).

         A. Qualified Immunity

         In 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 ...


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