United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendants Steggs, Tomsick, and
Sharp's Motion to Dismiss Amended
Complaint [#69] (the “Denver Defendants'
Motion”), filed in their official capacities; on
Defendants Stob, Rogers,  and Eugene's Motion to
Dismiss All Claims Alleged Against Them in Plaintiff's
Amended Prisoner Complaint [#73] (the “Medical
Defendants' Motion”); on Defendant Steggs'
Motion to Dismiss [#74] (“Steggs'
Motion”), filed in his individual capacity; and on
Defendants Tomsick and Sharp's Motion to Dismiss
Plaintiff's Amended Prisoner Complaint [#75]
(“Tomsick and Sharp's Motion”), filed in
their individual capacities. This recommendation addresses
all four motions (collectively, the “Motions”).
Plaintiff, who proceeds as a pro se litigant,  filed a single
Response [#86] in opposition to the Motions, and Defendants
filed Replies [#89, #90, #91]. The Motions have been referred
to the undersigned for recommendation pursuant to 28 U.S.C.
§ 636(b) and D.C.COLO.LCivR 72.1(c). See [#70,
#76]. Having reviewed the entire case file and being
sufficiently advised, the Court respectfully
RECOMMENDS that the Motions [#69, #73, #74,
#75] be GRANTED.
relevant times for purposes of this lawsuit, Plaintiff has
been an inmate at the Van Cise-Simonet Denver Downtown
Detention Center (“DDC”) in the custody of the
Denver County Sheriff's Department. Am. Compl.
[#60] at 6. He brings this action pursuant to 42 U.S.C.
§ 1983 against six DDC employees. Id. at 2-4.
July of 2016, while a pretrial detainee, Plaintiff was housed
in the Special Management Unit of the DDC, which is a unit
where he received his meals through a tray slot built into
the door of his cell. Id. at 7. On July 17, 2016,
Plaintiff alleges that the food on his lunch tray had a hair
in it, which prompted him to ask DDC employee Deputy Nyguen,
who was serving lunch that day, to replace his tray.
Id. Plaintiff alleges that this prompted a verbal
argument with Deputy Nyguen and “in anger the Plaintiff
threw a cup of juice on Nyguen through the tray slot that is
cut in the steel door.” Id. Plaintiff then
stuck his hand and arm out of the tray slot and refused to
move it until Deputy Nyguen complied with his demand that a
supervisor come talk to Plaintiff about the hair in his food.
Id. With his hand and arm in the tray slot, deputies
could not close the flap. Id. Plaintiff alleges that
approximately four minutes later Defendant Steggs approached
Plaintiff's cell and instructed him to “take [his]
hands out of the flap.” Id. When Plaintiff
refused to remove his arm and hands from the tray slot,
Defendant Steggs “violently kicked the door to the tray
slot while the Plaintiff had his hands through the tray
slot.” Id. Plaintiff alleges “[t]his
kicking of the tray slot door by Defendant Steggs caused the
tray slot door to slam on the Plaintiff's hands [ ] -
crushing the Plaintiff's hand - causing much pain.”
the door-kicking incident, Plaintiff “proceeded to
cover the windows of his cell so none of the Denver Sheriff
Deputies could see within his cell.” Id.
Plaintiff alleges that, after a short time had passed,
without warning, notification, “or an attempted request
to make the Plaintiff comply with any ‘direct
orders' - ‘directive(s)' from a superior
officer or deputy in general, ” Defendants Tomsick,
Sharp, and others electronically opened his cell door and
rushed inside. Id. Plaintiff alleges that Defendant
Sharp, along with an unidentified deputy, grabbed Plaintiff
first. Id. Then, Defendant Tomsick grabbed Plaintiff
by the body and grabbed his hand. Id. Plaintiff
alleges that “Defendant Tomsick used the law
enforcement wrist and hand-twist/with finger twisting to take
control of the Plaintiff.” Id. The
unidentified deputy then allegedly “started punching
the Plaintiff in the back.” Id. Plaintiff
alleges that this altercation in his cell lasted
approximately fifteen-to-twenty seconds before Plaintiff was
extracted from his cell. Id. at 8.
out of his cell, Plaintiff alleges he was “walked up to
a steel table [by an unidentified deputy] and slammed face
down into the steel table without any way to brace [h]is fall
for facial impact.” Id. While held down on the
table, Plaintiff alleges an unidentified deputy twisted his
fingers, causing him “pain and suffering.”
Id. Two unnamed deputies then lifted him off the
table and allegedly slammed him onto the ground, again
without providing Plaintiff any opportunity to brace his
fall. Id. Plaintiff alleges that he fell into a
position on the ground that “caused [his] legs to be
positioned awkwardly and painfully.” Id. Next,
one or more unidentified deputies landed on Plaintiff,
causing him more pain in his legs. Id. Plaintiff
alleges he pleaded with the deputies to get off his legs
because he was in pain, but they refused and continued
“yelling for the Plaintiff to straighten his legs and
stop resisting so Defendant Sharp could place the leg
restraints on the Plaintiff.” Id. Plaintiff
alleges he tried to comply, but Defendant Sharp got violent
and “took out his O.P.N.'s and put them within the
Plaintiff's right ankle area and twisted (contorted)
them.”Id. Plaintiff alleges that
“[t]his was an attempt to bring more ‘pain'
to the Plaintiff.” Id. Further, Plaintiff
alleges that “Defendant Sharp ‘actually lost his
physical self control' and did ‘not' evaluate
the Plaintiff's ‘physical bodily
positioning.'” Id. Plaintiff alleges that
Defendant Sharp was able to eventually put the leg restraints
on the Plaintiff, but they were “so tight that the
‘blunt metal shackles actually did in fact cut into the
Plaintiff's ankles -gashing the Plaintiff's skin -
causing a[n] open flesh wound that produced blood.”
Id. An unidentified deputy or deputies then placed
him in a restraint chair. Id.
the tray slot incident, cell extraction, and allegations of
other physical altercations, Plaintiff alleges that Defendant
Eugene was the DDC nurse responsible for conducting a medical
evaluation of his condition. Id. Plaintiff alleges
that Defendant Eugene completed a visual lookover, but
“did ‘not' ask the Plaintiff if and what
injuries he had sustained and or even see the large gash on
the Plaintiff's leg” or clean or cover the wound.
Id. Plaintiff alleges that given his visible
injuries, the only explanation for Defendant Eugene's
failure to provide medical care to him was a
“‘culpable state of mind'” and that
“Defendant Eugene chose to be ‘deliberate[ly]
indifferent' to the Plaintiff's medical needs.”
Id. Plaintiff does not allege that he told, or was
prevented from telling, Defendant Eugene about the gash.
alleges that the next day, July 18, 2016, he had his public
defender take pictures of his body. Id. Further, the
“photographs identified a large gash on the
Plaintiff's ankle, above the ankle high up rather-a
swollen deep gash on the lower portion of the Plaintiff's
ankle-extending all the way up the Plaintiff's calf area,
bruising on the Plaintiff's back and bruising on the
Plaintiff's hand from the food tray slot being slammed on
it.” Id. Later that day, Defendant Rogers
conducted x-rays on his ankle and leg and determined that no
bones were broken. Id. at 9. Plaintiff alleges that
Defendant Rogers has no training in reading x-rays and
therefore “acted within a professional scope that
Defendant [Rogers] had no training in.” Id.
However, Plaintiff does not allege that his bones were
actually broken or that Defendant Rogers actually missed any
information shown by the x-rays.
Plaintiff alleges that he “submitted numerous medical
request[s] over the course of the next ten days to see the
doctors about his injuries stemming from officers[']
(Defendants in this complaint) assault on the 17th of July
2016.” Id. Plaintiff alleges that
“Defendant Stob did not evaluate the Plaintiff at any
time after the incident where he sustained his injuries and
this is a ‘deliberate indifference' to the
Plaintiff's medical needs because the Plaintiff should
have been seen by a medical provider who was qualified to
evaluate the Plaintiff's medical injuries.”
Id. Plaintiff does, allege, however, that Defendant
Stob performed a medical examination on him ten days after
the cell extraction. Id. at 12. Plaintiff alleges
that his pain and suffering “was avoidable by doing a
medical evaluation and providing the Plaintiff with
‘adequate medical care' but with a ‘culpable
state of mind' Defendant Stob chose ‘not' to do
so” sooner. Id. at 9.
claims, pursuant to 42 U.S.C. § 1983, that each of the
six Defendants, in their individual and official capacities,
have inflicted unnecessary pain and suffering constituting
cruel and unusual punishment in violation of the
Plaintiff's rights under the Eighth and Fourteenth
Amendments of the United States Constitution. Id. at
16, 20. Plaintiff seeks injunctive relief to receive
“adequate medical care” and “to be free
from excessive use of force” and to require Defendants
to follow proper cell extraction policy and procedure.
Id. at 22. Plaintiff also seeks $500, 000 as
“compensatory; nominal; and punitive damages” for
the injuries suffered by Plaintiff as a result of
Defendants' actions. Id.
Standard of Review
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion,
“[t]he complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds' that discovery
will reveal evidence to support the plaintiff's
allegations.” Shero v. City of Grove, Okla.,
510 F.3d 1196, 1200 (10th Cir. 2007). “The court's
function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to
assess whether the plaintiff's complaint alone is legally
sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf
& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
asserts that Defendants violated his rights under the Eighth
and Fourteenth Amendments to the United States Constitution.
Am. Compl. [#60] at 16, 20. Defendants argue that
the Court should analyze Plaintiff's claims under the
Eighth Amendment. Tomsick & Sharp's Motion
[#75] at 4; Medical Defs.' Motion [#73] at 6;
Steggs' Motion [#74] at 5. However, Plaintiff
was a pretrial detainee at the time of the events underlying
this lawsuit, and pretrial detainees are protected under the
Fourteenth Amendment's Due Process Clause rather than the
Eighth Amendment's proscription against cruel and unusual
punishment. Berry v. City of Muskogee, 900 F.2d
1489, 1493 (10th Cir. 1990); see also Kingsley v.
Hendrickson, 135 S.Ct. 2466 (2015). However, the Eighth
Amendment still provides the benchmark for claims of
excessive force and cruel and unusual punishment. Eaves
v. El Paso Cty. Bd. of Cty. Commissioners, No.
16-cv-01065-KLM, 2017 WL 1243013, at *5 (D. Colo. Mar. 24,
2017); Snyder v. Spilde, No. 15-cv-02169-GPG, 2016
WL 1059612, at *2 (D. Colo. Mar. 17, 2016). Therefore, the
Court analyzes Plaintiff's claims under the Fourteenth
Amendment, which incorporates the Eighth Amendment framework,
and the Kingsley “objectively
reasonable” test for excessive force against pretrial
detainees. Kingsley, 135 S.Ct. 2466, 2473 (2015).
Qualified Immunity for Deputy Defendants Steggs, Tomsick, and
Steggs, Tomsick, and Sharp assert that they are entitled to
qualified immunity. Steggs' Motion [#74] at 4-5;
Tomsick & Sharp's Motion [#75] at 13-15.
Government officials are entitled to qualified immunity from
liability for civil damages when their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person in their position would
have known. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity also offers protection from
trial and other burdens of litigation. See Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
Court's analysis of qualified immunity in the context of
a 12(b)(6) motion involves two inquires. The Court must
determine whether the alleged facts taken in the light most
favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). The Court must also consider whether
Plaintiff has shown that “the constitutional right was
clearly established at the time of the alleged unlawful
activity.” Swanson v. Town of Mountain View,
Colo., 577 F.3d 1196, 1199 (10th Cir. 2009) (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). The
Court may assess these two inquires in either order.
Pearson, 555 U.S. at 236.
question of whether the constitutional right was clearly
established must be asked in “the context of the
particular case before the court, not as a general, abstract
matter.” Simkins v. Bruce, 406 F.3d 1239, 1241
(10th Cir. 2005). That is, “[t]he relevant, dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer [in the
defendant's position] that his conduct was unlawful in
the situation he confronted.” Saucier, 533
U.S. at 202; see also Brosseau v. Haugen, 543 U.S.
194, 198 (2004). In order for a constitutional right to be
clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clear weight of authority
from other circuits must establish the constitutional right.
Medina v. City & Cty. of Denver, 960 F.2d 1493,
1498 (10th Cir. 1992). In other words, there must be case law
in which a constitutional violation was found based on
similar conduct. See Callahan v. Millard Cty., 494
F.3d 891, 903 (10th Cir. 2007). “The precedent is
considered on point if it involves materially similar conduct
or applies with obvious clarity to the conduct at
issue.” Lowe v. Raemisch, 864 F.3d 1205, 1208
(10th Cir. 2017) (internal quotations omitted).
“Because the prior case must involve materially similar
conduct or apply with obvious clarity, qualified immunity
generally protects all public officials except those who are
plainly incompetent or those who knowingly violate the
law.” Id. (internal quotations omitted).
argue that Plaintiff fails to adequately assert a
constitutional violation because his allegations do not
satisfy both the objective and subjective prongs of the
excessive force test under the Eighth Amendment. Tomsick
& Sharp's Motion [#75] at 5; Steggs'
Motion [#74] at 5. However, Defendants are applying an
outdated standard. See Kingsley, 135 S.Ct. 2466.
According to Kingsley, to successfully allege a 42
U.S.C. § 1983 claim of excessive force under the
Fourteenth Amendment, a pretrial detainee plaintiff must
allege two elements: (1) that the defendant possessed a
“purposeful, a knowing, or possibly a reckless state of
mind, ” id. at 2473 (finding negligent or
accidental infliction of harm is beneath the threshold of
constitutional due process); and (2) that the defendant's
actions were objectively unreasonable in light of facts and
circumstances of that particular case. Id.
Plaintiff makes no allegations that any Defendant's
behavior was negligent or accidental. Moreover,
Plaintiff's allegations clearly suggest purposeful
conduct; i.e., “slamming” him on a table,
refusing his pleas to get off his legs, and punching him in
the back. Therefore, Plaintiff adequately alleges the first
element of a purposeful or knowing state of mind as required
for an excessive force claim under the Fourteenth Amendment
as to each of the six Defendants.
determine objective reasonableness under the second element,
the Court should consider, but is not limited to considering,
the following factors: “the relationship between the
need for the use of force and the amount of force used; the
extent of the plaintiff's injury; any effort made by the
officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat
reasonably perceived by the officer; . . . whether the
plaintiff was actively resisting”; and the legitimate
interests of the need to maintain internal order and security
at a prison institution. Id. (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)). Not “every
malevolent touch by a prison guard gives rise to a federal
cause of action.” Hudson v. McMillian, 503
U.S. 1, 9 (1992). De minimus uses of physical force are the
sort that are not “repugnant to the conscience of
mankind” and are not a constitutional violation.
Id. at 9-10 (quoting Whitley v. Albers, 475
U.S. 312, 327 (1986).
alleges that after he refused a command to take his hands out
of the tray slot, Defendant Steggs “violently kicked
the door to the tray slot while the Plaintiff had his hands
through the tray slot” and that this “caused the
tray slot door to slam on the Plaintiff's hands
[sic]-crushing the Plaintiff's hand-causing much
pain.” Am. Compl. [#60] at 11. Plaintiff
alleges that Defendant Steggs had “deliberate
indifference[, ] a culpable state of mind, cause[d] the
unnecessary wanton [ ] infliction of ‘pain and
suffering' on the ...