United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
Steven Owens, Anglena Stevens, and Adam Gingrich
(collectively “Defendants”) ask the Court to
dismiss the causes of action brought against them pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff Darnell
Washington brings claims related to his conditions of
confinement and his allegedly inadequate medical treatment
during his incarceration at the Colorado State Penitentiary
(“CSP”). The Court holds that Mr. Washington
fails to state a claim against Warden Owens and Ms Stevens.
Additionally, Officer Gingrich is entitled to qualified
immunity on Mr. Washington's First Amendment and
Fourteenth Amendment claims. However, the Court finds Mr.
Washington's allegations against Officer Gingrich
sufficient to plausibly assert an Eighth Amendment violation.
Accordingly, the Court grants in part and denies in part
Defendants' Motion to Dismiss.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Mr. Washington in his Second Amended
Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
the claims of inadequate medical care, Mr. Washington alleges
he was unable to see a doctor between November 1, 2015 and
August 25, 2016, which caused him to endure pain and
suffering. Second Am. Compl. 4, ECF No. 16. When he visited a
doctor on August 25, 2016, the doctor informed him that he
would need surgery for growing lumps on his
back. Id. According to Mr. Washington,
he has not undergone surgery, and the lumps are causing him
pain and suffering. Id. Ms. Stevens-CHP's
director of mental health-informed Mr. Washington that he has
been getting inadequate treatment, because he “pissed
off someone in administration and Mr. Owens.”
Id. at 5. According to Mr. Washington, the former
director of mental health told Ms. Stevens not to give Mr.
Washington adequate care, and Ms. Stevens gave the same
instruction to her staff. Id. at 9.
15, 2017, Mr. Washington swallowed a razor and attempted to
hang himself, because his mental health had deteriorated.
Id. at 5. This caused him to cough up blood and
endure “massive pain.” Id. It was not
until after this incident that Mr. Washington received
“adequate care” from Ms. Stevens. Id.
Washington alleges that Mr. Owens-the warden of CSP-“is
fully aware of the problem and continues to allow outrageous
behavior . . . .” Id. at 5. According to Mr.
Washington, Mr. Owens “houses all the mentally ill
inmates but refuses to have mental health programs.”
Id. at 13.
Washington also takes issue with his conditions of
confinement. On February 15, 2017, Mr. Washington told
Officer Gingrich that he wanted to commit suicide.
Id. at 5-6, 11. Officer Gingrich removed Mr.
Washington from his cell and placed him in an observation
cell in the back of the intake area. Id. The
observation cell did not have toilet paper, which forced Mr.
Washington to wipe himself with his shorts or shirt.
Id. at 6, 11. He then placed his shorts or shirt in
the toilet, and the toilet overflowed. Id. As a
result, Mr. Washington ate and remained in a “cell full
of human waste for hours.” Id. Officer
Gingrich informed Mr. Washington that he was following basic
orders to retaliate against him and keep him in the cell.
Id. at 6, 11.
Washington initiated this case on April 17, 2017. Compl., ECF
No. 1. Pursuant to an order issued by the Honorable Gordon P.
Gallagher, Mr. Washington filed the operative Second Amended
Complaint on August 8, 2017. Second Am. Compl., ECF No. 16.
Mr. Washington alleges an Eight Amendment cruel and unusual
punishment claim, a Fourteenth Amendment due process claim,
and a First Amendment retaliation claim against Officer
Gingrich and Warden Owens. Id. at 11-13. Mr.
Washington asserts claims against Ms. Stevens for Eighth
Amendment cruel and unusual punishment, a violation of the
Americans with Disabilities Act (“ADA”), and
intentional infliction of emotional distress
(“IIED”). Id. at 9.
October 30, 2017, Defendants responded to Mr.
Washington's Second Amended Complaint by filing the
present Motion to Dismiss, ECF No. 45. Regarding Mr.
Washington's Fourteenth Amendment due process claims,
Defendants contend the Court should analyze them under the
Eighth Amendment. Id. at 4. Furthermore, Defendants
argue that Mr. Washington's allegations do not give rise
to a protected liberty interest in the conditions of his
confinement. Id. at 4-6. As for the Eighth Amendment
claims, Defendants assert Mr. Washington does not plausibly
allege he was deprived of an objectively serious medical need
or that Defendants were subjectively aware of an excessive
risk to Mr. Washington's safety. Id. at 6-9.
Defendants then argue that Mr. Washington does not allege the
elements of his First Amendment retaliation claims, his ADA
violation, and his claim for IIED. Id. at 10-13,
14-15. Finally, because Mr. Washington sues Defendants only
in their individual capacities, Defendants assert entitlement
to qualified immunity over the constitutional claims.
Id. at 13-14.
Washington subsequently filed a response, which generally
restates the allegations in his Second Amended Complaint.
Resp. to Mot. to Dismiss, ECF No. 50. Defendants did not file
a reply brief. Instead, Defendants filed a motion to stay
this case pending the resolution of their Motion to Dismiss,
which the Court granted. See Order Granting Mot. to
Stay, ECF No. 52.
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.'”
Ashcroft v. Iqbal, 556 U.S. 662');">556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded 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.
Oklahoma, 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 the 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.
Dismissal of a Pro Se Plaintiff's Complaint
federal court must construe a pro se plaintiff's
pleadings “liberally” and hold the pleadings
“to a less stringent standard than formal pleadings
filed by lawyers.” Smith v. United States, 561
F.3d 1090, 1096 (10th Cir. 2009). “[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.” Id. (citing
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)). The Tenth Circuit has interpreted this rule to
[I]f 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 ...