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Schabow v. Steggs

United States District Court, D. Colorado

February 21, 2018

BRIAN SCHABOW, Plaintiff,
v.
STEGGS, individually and officially as Denver Sheriff Deputy, TOMSICK, individually and officially as Denver Sheriff Deputy Sergeant, K. SHARP, individually and officially as Denver Sheriff Deputy, STOB, individually and officially as Denver Health Doctor, CARROLL, individually and officially as Denver Health Psychiatric Nurse, and EUGENE, individually and officially as Denver Health Practical Nurse, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Defendants Steggs, Tomsick, and Sharp's Motion to Dismiss Amended Complaint [#69][1] (the “Denver Defendants' Motion”), filed in their official capacities; on Defendants Stob, Rogers, [2] 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, [3] 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.

         I. Background

         At all 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.

         During 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.” Id.

         After 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.

         Once 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.”[4]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.

         After 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.

         Plaintiff 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.

         Lastly, 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.

         Plaintiff 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.

         II. Standard of Review

         The 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) (citation omitted).

         III. Analysis

         Plaintiff 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).

         A. Qualified Immunity for Deputy Defendants Steggs, Tomsick, and Sharp

         Defendants 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).

         The 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.

         The 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).

         1. Excessive Force

         Defendants 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.

         Here, 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.

         To 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).

         a. Defendant Steggs

         Plaintiff 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 ...


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