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Wilson v. Romero

United States District Court, D. Colorado

February 15, 2018

TERANCE DEJUAN WILSON, Plaintiff,
v.
C.S.P. WARDEN ROMERO, C.S.P. ASST. WARDEN LITTLE, C.S.P. MAJOR NUNEZ, C.S.P. LT. REED, C.S.P. SGT. LEFEBRE, C.S.P. SGT. GOLD, C.S.P. C.O. PARLETTE, C.S.P. CPT. BARBERO, C.S.P. SGT. CHASE, C.S.P. LT. MCVEIGH, C.S.P. NURSE ASHLEY DAVIS, C.S.P. LT. LANGONI, C.O. LEA, GRIEVANCE OFFICER ANTHONY A. DECESARO, C.S.P. SGT. ORTIZ, C.S.P. C.M. OLIVETTE, C.S.P. NURSE DEBBIE ROWE, C.S.P. NURSE GARCIA, C.S.P. DOCTOR TANSEY, C.S.P. C.O. VAUGN, C.S.P. UNKNOWN SGT. IN B-UNIT C.S.P. UNKNOWN OFFICER A-UNIT CONTROL C.S.P. C.O. MURPHY, C.S.P. C.O. BARNES, and C.M. WAGNER, Defendants.

          REPORT & RECOMMENDATION ON THE MOTION TO DISMISS FOURTH AMENDED COMPLAINT (Docket No. 48)

          Michael J. Watanabe United States Magistrate Judge

         This case is before the Court pursuant to a memorandum (Docket No. 49) referring the subject motion (Docket No. 48) entered by Judge Christine M. Arguello on May 4, 2017. Now before the Court is the Motion to Dismiss Fourth Amended Complaint (Docket No. 48). The Court has carefully considered the motion, the Response (Docket No. 50), and the Reply (Docket No. 51). The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.

         Jurisdiction

         The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         Allegations[1]

         Plaintiff, who proceeds pro se, [2] brings this action under 42 U.S.C. § 1983, alleging a variety of actions by Defendants relating to his incarceration by the Colorado Department of Corrections (“CDOC”) in the Colorado State Penitentiary (“CSP”). In short, Plaintiff purports to bring Eighth Amendment cruel and unusual punishment claims against 26 individuals. The Court briefly summarizes them herein, divided by Defendant.

         Defendant Romero

         Plaintiff alleges that Defendant Romero was informed that Plaintiff was being targeted by white supremacists and had been accused of being a snitch and a sex offender. (Docket No. 44 at 7). Plaintiff further alleges that Defendant Romero failed to protect him from an attack by two white supremacists that occurred on July 24, 2016. (Id.) Plaintiff maintains that he suffered serious injuries as a result of the attack. (Id. at 8). Plaintiff also alleges that Defendant Romero failed to take reasonable measures to prevent an attack on August 3, 2016 during which Plaintiff was attacked with feces. (Id.) Plaintiff maintains that another inmate showed him a blade that same day and Plaintiff was subsequently threatened because he complained to other Defendants. (Id.) Plaintiff alleges that Defendant Romero “failed to respond or investigate reasonably, and failed to take reasonable steps to exercise protection from assault and abate further risk of assault.” (Id.) Plaintiff further alleges that Defendant Romero “was grossly negligent” because of actions allegedly taken by Defendant Rowe. (Id.) Plaintiff maintains that Defendant Romero is liable for understaffing the medical facility in the prison. (Id.) Plaintiff alleges that Defendant Romero, among others, has failed to investigate the “systematic” harassment he has experienced while in prison. (Id.) Plaintiff also alleges that he was attacked by other inmates while sleeping on August 31, 2016. (Id. at 9). Plaintiff alleges that Defendant Romero continually disregarded risks to his safety. (Id.) In sum, Plaintiff's allegations against Defendant Romero relate to this Defendant's supervisory role as the Warden at CSP. Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Little

         Plaintiff alleges that Defendant Little, the Assistant Warden at CSP, also was informed that Plaintiff was a target of white supremacists and “failed to protect” Plaintiff. (Docket No. 44 at 7). Similar to his allegations against Defendant Romero, Plaintiff alleges that Defendant Little failed to protect him from the feces attack on August 3, 2016 and failed to respond or investigate reasonably after Plaintiff complained after being shown a blade by another inmate. (Id. at 8). Plaintiff alleges that Defendant Little is responsible for understaffing the medical facility and negligent due to inaction relating to the alleged negligence of other Defendants. (Id.) Plaintiff alleges that Defendant Little continually disregarded risks to his safety and “failed to enforce policies” and acquiesced in unconstitutional behaviors and prison conditions. (Id. at 9-10). Plaintiff further alleges that he was attacked on August 31, 2016 while sleeping and that Defendant Little continually disregarded the risk Plaintiff faced in prison. (Id. at 10). Plaintiff maintains that Defendant Little's failure to segregate him in prison violated Plaintiff's constitutional rights. (Id.) In sum, Plaintiff's allegations against Defendant Romero relate to this Defendant's supervisory role as the Assistant Warden at CSP. Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Reed

         Plaintiff alleges that the March 19, 2016 attack during which two inmates associated with the Sureños gang attacked him “was directly caused by” Defendant Reed because of this Defendant's disregard of a known risk to Plaintiff. (Docket No. 44 at 7). Plaintiff states that he informed Defendant Reed about the August 31, 2016 attack. (Id. at 9). As with the prior Defendants, Plaintiff includes a general allegation that Defendant Reed's failure to segregate him while in prison has resulted in a deprivation of his constitutional rights. (Id.) Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Nunez

         Plaintiff alleges that Defendant Nunez was aware that he was targeted by other inmates and failed to protect him. (Docket No. 44 at 7). Similar to his allegations against Defendants Romero and Little, Plaintiff alleges that Defendant Nunez failed to protect him from the feces attack on August 3, 2016, and failed to respond or investigate reasonably after Plaintiff complained that he was shown a blade by another inmate. (Id. at 8). As with the prior Defendants, Plaintiff includes a general allegation that Defendant Nunez's failure to segregate him while in prison has resulted in a deprivation of his constitutional rights. (Id.) Plaintiff further alleges that he was attacked on August 31, 2016 while sleeping and that Defendant Nunez continually disregarded the risk Plaintiff faced in prison. (Id. at 9). Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Lefebre

         Plaintiff's makes a general allegation that Defendant Lefebre was deliberately indifferent to the alleged systematic harassment Plaintiff faced in prison. (Docket No. 44 at 8-9). Plaintiff also alleges that Defendant Lefebre, among others, told other inmates that Plaintiff is “a piece of shit.” (Id. at 9). Plaintiff maintains that on or around January 31, 2017, Defendant Lefebre said that Plaintiff wouldn't get his medication if he did not come out of his cell. Plaintiff further alleges that this Defendant said he wanted Plaintiff to come out of his cell so Defendant Lefebre could watch Plaintiff get beat-up. (Id.) Plaintiff notes that he was on lockdown at that time and, therefore, could not exit his cell. Plaintiff alleges that the actions and inactions of this Defendant lead to Plaintiff being assaulted with feces by another inmate. (Id.) Defendant Gold Plaintiff makes a general allegation that Defendant Gold was deliberately indifferent to the alleged systematic harassment Plaintiff faced in prison. (Docket No. 44 at 8-9). Plaintiff also alleges that Defendant Gold, among others, told other inmates that Plaintiff is “a piece of shit.” (Id. at 9). Plaintiff maintains that on or around January 31, 2017, Defendant Gold said that Plaintiff wouldn't get any privileges if he did not come out of his cell. (Id.) Plaintiff alleges that the actions and inactions of this Defendant lead to Plaintiff being assaulted with feces by another inmate. (Id.)

         Defendant Chase

         Plaintiff alleges that on or about April 4, 2016, Defendant Chase received information “from the specific inmates threatening to ‘kill' plaintiff if he wasn't relocated.” (Docket No. 44 at 7). Plaintiff maintains that he was interrogated, but the other inmates were not. (Id.) Plaintiff alleges that Defendant Chase told him that “we knew the individuals who threatened your life and we thought it was funny.” (Id.)

         Defendant Parlette

         Plaintiff alleges that Defendant Parlette “aided” the August 31, 2016 attack that occurred while he was sleeping by opening Plaintiff's cell. (Docket No. 44 at 9). Plaintiff further alleges that Defendant Parlette opened the door to the cell even though he knew that Plaintiff faced “an excessive risk of attack.” (Id.) Plaintiff also alleges that Defendant Parlette was responsible for another incident with a different inmate. Plaintiff states that Defendant Parlette told him the other inmate was not out of his cell, which then prompted Plaintiff to exit his cell. (Id.) Plaintiff alleges that ten minutes later Defendant Parlette let the other inmate out of his cell. (Id.) It is unclear if there was a fight of any kind on that day or if Plaintiff is alleging that just being out of his cell at the same time as this other inmate was the issue. (Id.)

         Defendant Barbero

         Plaintiff brings two allegations against Defendant Barbero. The first is a general allegation that Plaintiff informed this Defendant about the August 31, 2016 attack he sustained while in his cell. (Docket No. 44 at 8). Plaintiff does not allege any actions by Defendant Barbero with regard to this attack. The second is an allegation relating to incidents that occurred on August 3, 2016. Plaintiff alleges that after another inmate showed him a blade and threatened him, Barbero failed to protect him. (Id. at 8). Plaintiff alleges that this Defendant and Defendant Ortiz agreed to teach Plaintiff a lesson for “snitching.” (Id.) Plaintiff alleges that Defendant Barbero took Plaintiff to a cold, isolated cell in intake where Defendant Barbero instructed his “underlings” to torture Plaintiff. (Id.) Plaintiff maintains that “[t]he sexual taunts and harassments [sic] and humiliations lasted for (8) hours, into midnight, plaintiff was freezing and cold.” (Id.) Plaintiff alleges that Defendant Barbero called Plaintiff a snitch and told other inmates. (Id.) Plaintiff further alleges that Defendant Barbero encouraged a white supremacist inmate to repeat his threats and that inmate said he would go to Plaintiff's cell to rape and beat Plaintiff. (Id.)

         Defendant McVeigh

         Plaintiff includes two somewhat general allegations against Defendant McVeigh. First, Plaintiff alleges that this Defendant, among others, received information that certain other inmates threatened to kill Plaintiff. (Docket No. 44 at 7). Plaintiff also alleges that Defendant McVeigh, among others, failed to investigate the on-going harassment of Plaintiff. (Id. at 8-9). Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Davis

         Plaintiff alleges that Defendant Davis failed to monitor or treat Plaintiff's “frequent concussions” and other injuries. (Docket No. 44 at 8). Plaintiff further alleges that Defendant Davis “was grossly negligent as the supervisor or other nurses” and failed to discipline them. (Id.)

         Defendant Langoni

         Plaintiff alleges that Defendant Langoni failed to protect him from an attack by two white supremacists that occurred on July 24, 2016. (Docket No. 44 at 7). Plaintiff maintains that he suffered serious injuries as a result of the attack. (Id. at 8). Plaintiff also alleges that Defendant Langoni failed to take reasonable measures to prevent an attack on August 3, 2016 during which Plaintiff was attacked with feces. (Id.) Plaintiff also includes Defendant Langoni in his allegations surrounding the August 31, 2016 assault, but it is unclear what participation he alleges on this Defendant's part. Plaintiff maintains that due to “the actions of Langoni and Trudillo, the plaintiff was subjected to ‘guard brutality' and ‘excessive force' at the hands of Langoni and Trudillo plaintiff was brutally [battered] suffering concussions, disorientation, a busted tooth, and a fully bitten through lip.” (Id. at 9). This is the same attack during which Plaintiff alleges Defendant Parlette opened his cell door so that other inmates could attack him. Therefore, it appears that Plaintiff is alleging that “guard brutality” is the failure to protect, not any direct physical attack by Defendant Langoni.

         Defendant Lea

         Plaintiff alleges that Defendant Lea called Plaintiff a “snitch” over an intercom and said “you're that punk that molested both of your daughters. [Y]ou like little girls . . . .” (Docket No. 44 at 8). Plaintiff alleges that this action started rumors about him and lead to harassment and threats. (Id.) He notes that as a result of Defendant Lea's accusations, other inmates “got involved, ” including the one who threatened him with a blade. (Id.)

         Defendant Decesaro

         Plaintiff alleges that Defendant Decesaro failed to take reasonable measures to prevent an attack on August 3, 2016 during which Plaintiff was attacked with feces. (Docket No. 44 at 8). Plaintiff alleges that Defendant Decesaro continually disregarded risks to Plaintiff's safety. (Id. at 8-9). Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Ortiz

         With regard to the incident that occurred on August 3, 2016, Plaintiff alleges that after another inmate showed him a blade and threatened him, Defendant Ortiz failed to protect him. (Docket No. 44 at 8). Plaintiff alleges that this Defendant accused Plaintiff of lying and then agreed with Defendant Barbero to teach Plaintiff a lesson for “snitching.” (Id.) Plaintiff alleges that he told Defendant Ortiz about Defendant Lea calling him a “snitch” over the intercom approximately one week prior to the August 3, 2016 incident. (Id.) Plaintiff also alleges that Defendant Ortiz, among others, failed to investigate the on-going harassment of Plaintiff. (Id. at 8-9). Plaintiff also includes Defendant Ortiz in his allegations surrounding the August 31, 2016 assault. (Id. at 9). This is the incident when Plaintiff was allegedly attacked in his cell while sleeping. Plaintiff alleges that Defendant Ortiz told Plaintiff “if you don't come out and fight then you don't get shit.” (Id.) Plaintiff alleges that a different Defendant, Defendant Parlette, opened his cell door despite Plaintiff's request for it to remain closed. (Id.)

         Defendant Olivette

         Plaintiff names Defendant Olivette once in the Fourth Amended Complaint. (Docket No. 44 at 9). He states: “After informing intel. Reed, Ortiz. Writing a grievance. And 30 minutes before requesting that she, Olivette, in the privacy of her office, take the necessary steps to prevent a specified fight with a specified offender who had threatened my life an hour after moving in I was attacked and defended myself, the offender was seriously injured.” (Id.) Plaintiff does not allege any direct action or personal participation by this Defendant.

         Defendant Nurse Unknown

         Plaintiff alleges that Defendant Nurse Unknown “deprived Plaintiff of proper medical care” and “deprived Plaintiff of medication.” (Docket No. 44 at 8). Plaintiff also alleges that this Defendant “called Plaintiff things encouraging other violent inmates to threats.” (Id.) Plaintiff also alleges that, with regard to an incident that took place on January 31, 2017, Defendant Unknown Nurse told other inmates that Plaintiff is “a piece of shit” and that Plaintiff “doesn't get his medication.” (Id. at 9). Plaintiff maintains that her “actions, inactions, and encouragement” led to Plaintiff being assaulted with feces again and harassed. (Id.)

         Defendant Tansey

         Plaintiff mentions Defendant Tansey once in the Fourth Amended Complaint. He states: “Defendant Tansy . . . has refused to properly treat Plaintiff's mental health needs, depriving Plaintiff of necessary ...


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