United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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)
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.
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.
“[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.
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).
Treatment of a Pro Se Plaintiff's Complaint
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).
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 . . . .
now bring the present motion and ask the Court to dismiss the
majority of Plaintiff's claims.
Claims Against Defendants in Their Individual
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
Statute of Limitations
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)).
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 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.
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.
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.
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 ...