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Chrisco v. Raemisch

United States District Court, D. Colorado

February 20, 2018



          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Luke Irvin Chrisco (“Plaintiff”) proceeds pro se in this litigation and asserts seventeen claims against the various Defendants. In response, Defendants move to dismiss the majority of Plaintiff's claims. Finding that Plaintiff fails to state certain claims and that this Court lacks jurisdiction to hear the remainder, the Court respectfully recommends that the Honorable Philip A. Brimmer grant the Motion.


         Plaintiff is incarcerated at San Carlos Correctional Facility (“SCCF”) in the Colorado Department of Corrections (“CDOC”). Compl. 2, ECF No. 1. While Plaintiff's action was initiated in this court on April 26, 2017, see Id. at 1, he deposited the Complaint within the SCCF mail system on April 24, 2017, id. Attach. 1, at 2, ECF No. 1-1, which is relevant to a dispute concerning the applicable statute of limitations. All factual allegations in the Complaint are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff's first claim for relief arises from an incident that occurred on April 6, 2015. At approximately 11:00 p.m., Defendants Gallardo and Doe entered Plaintiff's cell to physically remove Plaintiff, because he had failed to uncover his cell window during shift change. Compl. ¶ 1. Plaintiff did not cooperate and instead protested by lying face-down on the floor. Id. ¶ 2. In response, Gallardo and Doe “introduced” “Oleam Resin military-grade foam gel” into Plaintiff's cell, and onto Plaintiff, through the cell tray slot. Id. After being hit with the gel, Plaintiff quickly cooperated, and the Defendants took him to a shower where he was able to rinse off the gel. Id. ¶ 3. However, after the shower, the “cell extraction team, ” under the direction of Gallardo and Doe, continued to physically manhandle Plaintiff while wearing gloves that were contaminated with the gel. Id. ¶ 4. This physical contact reapplied the gel onto Plaintiff. Id. Plaintiff protested about being exposed to the gel again but was told to be silent. Id. ¶ 5. Soon, the gel began to burn. Id. ¶ 6.

         Plaintiff was then transferred to a cell that had been prepared by Defendant Espinosa, at the direction of Gallardo and Doe, such that the sink was turned off and the toilet did not work. Id. ¶ 7. There, Plaintiff attempted to rinse off the gel using the water in the toilet, id. ¶¶ 8, 10, but this eventually compounded the problem as the toilet water became contaminated with the gel, id. ¶ 10. Plaintiff begged the unit guard Doxdettler to turn the water on, and, after forty-five minutes, Doxdettler agreed. Id. ¶ 11. However, because the operation of a separate valve unknown to Doxdettler was necessary to activate the cold water, he was only able to turn on the hot water. Id. ¶ 11. Plaintiff used the hot water to attempt to rinse off the gel, but doing so caused great pain. Id. ¶¶ 12-13. Doxdettler notified Gallardo and Doe about Plaintiff's condition, but they refused to allow Plaintiff a shower or to activate the cold water. Id. ¶ 13. Gallardo instructed Doxdettler to ignore Plaintiff's continued requests for attention. Id. ¶ 15.

         Shortly thereafter, Plaintiff's nose began to bleed, and Plaintiff used his blood to write “NEED COLD WATER NOW” on the wall of the cell. Id. ¶ 16. This attracted Doxdettler's attention, and he called for a nurse. Id. ¶¶ 16-17. The nurse called for Defendant Krakow. Id. ¶ 17. Krakow “had” Plaintiff placed in restraints and had “mitts” put on his hands. Id. ¶ 18. These restraints caused Plaintiff great pain. Id. ¶ 19. Plaintiff was left in the restraints for three days, during which he continued to experience great pain in his hands. Id. ¶ 21. Plaintiff claims this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.

         Plaintiff's second claim arises from events that began on April 15, 2015. Id. ¶ 26. On that date, Defendant Maley ordered Plaintiff be placed on a “Mental Health Watch” (“MHW”) and additionally put him in ambulatory metal shackles and belly restraints, with his hands attached in cuffs at the waist. Id. ¶¶ 26-27. These restraints made it nearly impossible for Plaintiff to sleep. Id. ¶ 28. The restraints also caused wounds on Plaintiff's wrists and ankles. Id. ¶ 31. During the MHW, Plaintiff was subjected to “restraint checks” every two hours. Id. ¶ 29. During a restraint check, Plaintiff was removed from his cell by threat of force and shoved into a wall while a nurse examined his restraints to ensure they were not too tight. Id. ¶ 29. Defendants Spearing and Gibson participated in conducting the restraint checks. Id. ¶ 30. Plaintiff alleges the purpose of the restraint checks was to deprive him of sleep. Id. Plaintiff alleges the goal of the MHW was to break his will to do legal work. Id. ¶¶ 27, 32. Plaintiff claims these checks violated his Eighth Amendment right to be free from cruel and unusual punishment.

         Plaintiff's third claim arises from conduct that occurred during an MHW from April 19 through April 24, 2015. Id. ¶ 36. During this time, Defendant Travis ordered Plaintiff's hands be secured behind his back (rather than at his sides) while in ambulatory restraints daily from 6 a.m. to 2 p.m. Id. Plaintiff refers to being secured in this manner as “hog tied.” Id. At the end of Travis' shift, someone else returned Plaintiff's hands to a secured position at his sides. Id. ¶ 37. Plaintiff claims this conduct violated his Eighth Amendment right to be free from cruel and unusual punishment.

         Plaintiff's fourth claim arises from the identical conduct. Plaintiff alleges Defendant Travis knew Plaintiff had filed several grievances against SCCF and its law library. Id. ¶ 40. Plaintiff claims Travis had a retaliatory motive when he ordered Plaintiff hog tied during the April 2015 MHW. Id. ¶¶ 42-43. Plaintiff alleges he began to suffer neuropraxia of the wrists and hands as a result of the being hog tied. Id. ¶ 44. He also alleges he had “PTSD-like symptoms” in which he would have nightmares and flashbacks about the abuse. Id. Plaintiff alleges Travis violated the First Amendment by retaliating against Plaintiff's use of process.

         Plaintiff's fifth claim arises from an incident that occurred on April 17, 2015. Id. ¶ 46. On that date, Defendant Montoya, Defendant Eslinger, and C.O. Andrade entered Plaintiff's cell while he was attempting to sleep. Id. Montoya and Andrade held Plaintiff down with a plastic shield, and Montoya ordered Eslinger to begin “smashing/forcing” his tazer into Plaintiff's right shin, where he had scar tissue from a previous injury. Id. ¶¶ 46-47. Eslinger also put his knee into Plaintiff's shin in an attempt to cause additional pain. Id. ¶ 48. Plaintiff continues to experience pain in his leg. Id. ¶ 49. Plaintiff alleges this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.

         Plaintiff's sixth claim arises from conduct that occurred on April 21, 2015. Id. ¶ 54. On that date, Defendants Cortez, Collins, and Sierra entered Plaintiff's cell and, while he was in ambulatory restraints, threw him into the concrete bunk. Id. ¶ 55. Collins then “pummeled” Plaintiff in the side and back, Sierra stomped on Plaintiff's leg shackles, and Cortez elbowed Plaintiff in the spine and ribs. Id. Plaintiff did nothing to resist the beating, because his arms were chained to his sides by the restraints. Id. ¶ 56. Plaintiff alleges this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.

         Plaintiff's seventh claim arises from events that occurred on April 25, 2015. Id. ¶ 59. On that date, Defendant Keys, Defendant Eslinger, and C.O. Downard completed a restraint check in Plaintiff's cell. Id. As they were leaving, Plaintiff asked Keys, “What's your name?” Id. ¶ 60. Keys responded by reentering the cell and shoving Plaintiff with both hands in the chest, pushing Plaintiff backward. Id. ¶ 61. Plaintiff stumbled and hit his head on the concrete bunk. Id. ¶ 62. Plaintiff lost consciousness and suffered a quarter-sized hematoma on the top of his head. Id. ¶¶ 62-63. He awoke to Keys, Eslinger, Downard, and Defendant Jones laughing at his injuries. Id. ¶ 62. Defendants then left Plaintiff's cell, and he spent the next ten minutes requesting a nurse. Id. ¶¶ 64-65. Soon, guards summoned Jones back to Plaintiff's cell. Id. ¶ 65. Jones examined Plaintiff and confirmed he had abrasions and a bump on his head. Id. Plaintiff requested pain medication, but Jones refused to provide any. Id. Plaintiff alleges Keys' conduct violated his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff additionally alleges that Jones' decision to deny him medical care violated his Eighth Amendment right.

         Plaintiff's eighth claim arises from an incident that occurred on April 23, 2015. Id. ¶ 70. On that date, Defendants Shoffler and Montoya entered Plaintiff's cell to deliver his breakfast. Id. After two minutes, they decided that they would not allow him to finish his breakfast. Id. ¶ 70. Plaintiff then (in ambulatory restraints) grabbed a pancake in each hand. Id. Shoffler ordered Plaintiff to “drop the pancakes.” Id. ¶ 71. Plaintiff refused. Id. Shoffler and Montoya then employed physical joint-manipulation techniques to remove the pancakes. Id. Unsuccessful, the two Defendants moved Plaintiff from his cell to the hallway, where they employed “more aggressive” joint-manipulation techniques. Id. ¶ 72. Ultimately, Plaintiff released the pancakes for fear of serious injury. Id. Plaintiff alleges this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.


         I. Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff here bears the burden of establishing that the Court has jurisdiction to hear his claims.

         Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the truthfulness of the factual allegations for its Rule 12(b)(1) analysis.

         II. Fed.R.Civ.P. 12(b)(6)

         “To 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, 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 pled 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 678-80. 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.

         Plausibility 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.

         However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).

         III. Treatment of a Pro Se Plaintiff's Complaint

         A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers . . . .” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a 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 construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).


         Plaintiff's Complaint brings seventeen claims for relief against the various Defendants, and the claims can be separated into two broad categories. The first category includes eight claims against Defendants in their individual capacities and seeks compensatory and punitive damages for alleged deprivations of Plaintiff's constitutional rights. The second category consists of nine claims against Defendant Raemisch in his official capacity and asks the Court to enjoin future enforcement of CDOC Administrative Regulation 700-29 and other allegedly unconstitutional policies and practices. Plaintiff brings these claims pursuant to 42 U.S.C. § 1983, which provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

         Defendants now bring the present motion and ask the Court to dismiss the majority of Plaintiff's claims.

         I. Claims Against Defendants in Their Individual Capacities

         Defendants argue the majority of Plaintiff's claims against the Defendants in their individual capacities should be dismissed, because they are barred by the statute of limitations. Defendants also argue the Court should dismiss many of the claims, because the Defendants are entitled to qualified immunity.

         A. Statute of Limitations

         Defendants ask the Court to dismiss claims one through six and claim eight, because they are barred by the statute of limitations. The applicable statute of limitations (and accompanying tolling provision) for § 1983 claims is determined by state law. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). The forum state's statute of limitations for general personal injury actions governs those claims. Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999). In Colorado, the relevant statute provides a two-year limitations period. Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); Mwangi v. Norman, No. 16-cv-00002-CMA-NYW, 2016 WL 7223270, at *5 (D. Colo. Dec. 13, 2016) (citing Colo. Rev. Stat. § 13-80-102(1)(g)). While state law provides the relevant statute of limitations, federal law governs when those claims accrue. Beck, 195 F.3d at 557. A § 1983 action “accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1154 (10th Cir. 1998) (quoting Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993)).

         Here, Plaintiff submitted the Complaint to the SCCF prison mail system on April 24, 2017. See Compl. Attach. 1 at 2, ECF No. 1-1. Thus, Defendants argue any claim that accrued before April 24, 2015, is not timely. Mot. 4-7, ECF No. 32. Defendants proceed to argue (and Plaintiff does not rebut) that each of these claims accrued before April 24, 2015. Id. Plaintiff does not dispute that these claims accrued prior to the two-year period, but argues that the Court should equitably toll the deadline. Resp. 35, ECF No. 60. Plaintiff argues, “The facts of this case should lead the Court to conclude that Defendant Org's[1] wrongful conduct of preventing [P]laintiff from possessing or obtaining a copy of his prisoner complaint during March 26th to April 24th . . . entitles Plaintiff to equitable tolling of the relevant [statute of limitations] under Colorado precedent . . . .” Id.

         Like the applicable statute of limitations, whether the limitations period should be tolled is governed by state law. Fratus, 49 F.3d at 675. Colorado law provides that “[o]nce the statute of limitations is raised as a defense[, ] the burden of proof shifts to the party asserting that its application should be equitably tolled.” Sharp Bros. Contracting Co. & Sanders Co., Inc. v. Westvaco Corp., 878 P.2d 38, 44 (Colo.App. 1994). In Colorado, “ [t]he doctrine of equitable tolling is limited to situations in which either the defendant's wrongful conduct prevented the plaintiff from asserting the claims in a timely manner or truly exceptional circumstances prevented the plaintiff from filing the claim despite diligent efforts.” Noel v. Hoover, 12 P.3d 328, 330 (Colo.App. 2000). Here, Plaintiff argues that the Court should toll the limitations period, because the Defendants' wrongful conduct prevented him from timely filing his Complaint. Resp. 35.

         “Generally, in order for a statute of limitations to be tolled because of equitable considerations, the party asserting the statute as a defense must be the party engaging in conduct that would make the application of the statute inequitable.” Sharp Bros., 878 P.2d at 44. Here, Plaintiff argues that “the Defendant Org's wrongful conduct of preventing [P]laintiff from possessing or obtaining a copy of his prisoner complaint during March 26th to April 24th, 2017, entitles Plaintiff to equitable tolling . . . .” Resp. 35. Additionally, Plaintiff argues the “obstructionist tactics” by the SCCF law library prevented him from filing his complaint during this time period. Id. However, neither a “Defendant Org” nor the SCCF law library is a defendant to this lawsuit.

         Plaintiff's argument that a “Defendant Org” acted wrongfully to prevent Plaintiff from filing his complaint, Resp. 35, has no meaning to the Court. There are no organizational defendants to the present suit. Plaintiff does not assert that any of the Defendants (who are all individuals) to this suit engaged in any wrongful conduct that prevented him from filing his complaint. See Id. Absent bad-faith tactics by a defendant who is a party here, Colorado law does not permit a ...

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