United States District Court, D. Colorado
OPINION AND ORDER ON MOTION TO DISMISS AND FOR
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Defendants'
Motions to Dismiss and for Summary Judgment (##
135, 137), the Plaintiff's
Response (# 139), and the Defendants'
Reply (# 140). For the following reasons, the
motions are granted, in part.
Court has jurisdiction under 28 U.S.C. § 1331.
Second Amended Complaint (# 132), Mr. Wilson
alleges the following causes of action, all in violation of
the Eighth Amendment:
(1) use of excessive force prior to Mr. Wilson's
restraint against Defendants Wilcox, Litvan,
O'Shaughnessy, Navarette, Morabito, Hagans, Cullison,
Delgado, Terska, Klein, and Swartz;
(2) use of excessive force after Mr. Wilson's restraint
against Defendants Wilcox, Litvan, O'Shaughnessy,
Navarette, Morabito, Hagans, Cullison, Delgado, Terska,
Klein, and Swartz;
(3) deliberate indifference to Mr. Wilson's mental health
needs against all individual defendants;
(4) indifference to medical needs against Defendants Rogers
(5) creation of an environment in which excessive physical
force was likely to occur against Defendants Klein and
(6) creation of an environment in which medical neglect was
likely to occur against Defendants Klein and
Defendants request dismissal of various claims on various
theories under Federal Rule of Civil Procedure 12(b)(6). As
to all of the arguments but one, the Court limits itself to
the contents of Mr. Wilson's Second Amended Complaint,
construed most favorably to him.
regard to the defense of a bar under Heck v.
Humphrey and a failure to exhaust administrative
remedies, the Defendants have styled their motion as one
seeking summary judgment. This is understandable because Rule
12(d) provides that when matters outside the pleadings are
presented, that the motion should be considered as one
brought under Rule 56. Matters outside the pleadings have
been submitted with regard to these defenses. As to those
matters, the Court employs a Rule 56 standard, considering
the evidence presented in the light most favorable to the
non-movant, Mr. Wilson. However, the remedy is not summary
judgment, but instead dismissal without prejudice.
FACTUAL BACKGROUND 
Events Giving Rise to Mr. Wilson's Claims
November 2, 2013, Plaintiff Maurice Wilson, a prisoner
incarcerated at USP Florence, asked multiple times to see
someone in the psychology department. He informed Defendant
Kevin Litvan that he wanted to kill himself. Thereafter,
Lieutenant Litvan told Mr. Wilson he had been directed to
remove some property from Mr. Wilson's cell. When, Mr.
Wilson did not comply with this order, Lieutenant Litvan
informed Mr. Wilson that a Calculated Use of Force Team would
be dispatched if he did not comply. He did not comply.
use-of-force team consisting of Lieutenant Litvan and
Defendants Wilcox, O'Shaughnessy, Navarette, Morabito,
Hagans, Cullison, Delgado, and Terska, arrived and Mr. Wilson
was asked to submit to hand restraints. He refused. Officer
O'Shaughnessy sprayed tear gas into the cell. Lieutenant
Litvan counted to 15 and demanded that Mr. Wilson submit to
hand restraints. He refused. Officer O'Shaughnessy
deployed another burst of tear gas into the cell. Lieutenant
Litvan counted to 15 and demanded Mr. Wilson's
submission. Officer O'Shaughnessy then threw a vapor
grenade into the cell through the food slot. Lieutenant
Litvan counted to 15. Officer O'Shaughnessy deployed a
second vapor grenade. Lieutenant Litvan counted to 15.
Officer O'Shaughnessy deployed 10 pepper-ball rounds into
the cell. There was another 15-second pause. Officer
O'Shaughnessy fired another eight rounds of pepper balls
followed by another 15-second count. Officer Wilcox then
jammed a battering ram through the food slot, striking Mr.
Wilson. Officer Wilcox performed this task again. Officer
O'Shaughnessy fired a few rounds of a Low Impact Foam
Baton into the cell. This was followed by more counting, more
tear gas, and use of the battering ram. Mr. Wilson
consistently and repeatedly refused to submit to hand
use-of-force team then entered the cell. Mr. Wilson alleges
that he was compliant with orders and did not fight the
officers, but he was later disciplined for punching, choking,
biting, and kicking the officers. Eventually, after injuries
on both sides, the team subdued him. Once he was restrained,
the officers punched, kneed, dragged, yanked, and grabbed by
the testicles, resulting in trauma to his head, face, and
neck, as well as a number of contusions on his body.
being subdued, Mr. Wilson was taken to the medical unit for
decontamination, where Defendant Rogers purposefully failed
to document all of Mr. Wilson's injuries, such as the
trauma to his eyes, jaw, and head. Mr. Wilson was placed in
tight leg irons for 5.5 hours. The next morning, Mr. Wilson
asked for pain medication but received none. Mr. Wilson
unsuccessfully attempted suicide and was placed on suicide
watch without any medication. He was sent back to his cell
that day. During his time in the medical unit, he requested
medical assistance from Defendant Nehls multiple times as she
passed by. Each time she refused.
Mr. Wilson's Disciplinary Hearing 
Morabito completed an Incident Report charging Mr. Wilson
with “assaulting any person” in violation of Code
224 of 28 C.F.R. § 541.3. The report stated that Mr.
Wilson repeatedly refused to comply with staff orders and,
after a use-of-force team was called to his cell, he punched,
choked, and elbowed officers. Discipline Hearing Officer Carl
Miedich conducted a disciplinary hearing on this charge and,
based on this evidence, found Mr. Wilson guilty. Mr. Wilson
claimed that Officer Morabito's report was false and that
he never assaulted anyone on November 2. On Mr. Wilson's
appeal, a BOP regional director returned Officer
Miedich's decision for rehearing based on a procedural
error. On rehearing, Officer Miedich received evidence from
officers, witnesses called by Mr. Wilson, staff review of
video footage, and medical evaluations. He again found Mr.
Wilson guilty of assault, particularly that:
When the use-of-force team entered Plaintiff's cell,
Plaintiff punched the number 1 team member in the face.
Plaintiff placed his arms beneath the number 1 staff
member's helmet and choked him.
Other team members had to pull Plaintiff off of the number 1
Plaintiff punched, elbowed, bit, and kicked as many team
members as he could until staff was able to gain control of
During the use of force, Plaintiff knocked off a staff
member's helmet and gas mask.
Use-of-force team members received multiple injuries during
the use of force, including a possible broken finger and
bruising to the head and knee areas.
Officer Morabito, the author of the incident report, was
referred to a local hospital for head, arm, and neck
injuries, along with bruising to his right eye area.
135-2 ¶ 20. Mr. Wilson's disciplinary conviction has
never been reversed or invalidated.
Exhaustion of Administrative Grievances
on the evidence submitted in support and opposition to the
Motion, the Court finds the undisputed facts to be that Mr.
Wilson filed two fully exhausted grievances: Remedy No.
757664 and Remedy No. 759141. On November 15, 2013, Mr.
Wilson initiated Remedy No. 757664, generally alleging that
Mr. Wilson was assaulted corrections officers on November 2
and that medical staff covered up his injuries. Mr. Wilson
initiated Remedy No. 759141 on November 26, 2013, generally
alleging that NPT Nehls refused to treat him after he
sustained his injuries on November 2 and in the ensuing
weeks. The specifics of these grievances are addressed in the
without the assistance of counsel, Mr. Wilson commenced this
action on March 3, 2014 (# 4), alleging two
claims under the Eighth Amendment against various named staff
and five unnamed defendants. The Defendants filed a Motion
for Summary Judgment (# 36) on July 10,
2014, arguing that Mr. Wilson had failed to comply with
administrative grievance procedures and therefore had not
complied with the exhaustion requirements. Mr. Wilson filed a
Motion to Withdraw Complaint (# 39) on July
15, 2014, implicitly conceding that he had not completed the
Bureau of Prison's (BOP) grievance procedures. That
motion was granted by the district court on July 21, 2014 and
the case was dismissed without prejudice (#
41). Still pro se, Mr. Wilson filed a
Motion to Vacate/Reinstate (# 42) on
December 26, 2014. Although they were not identified as
distinct motions and identified with separate docket entries
by the Clerk of Court, Mr. Wilson's submission also
included a Motion for Appointment of Counsel, a Motion
Demanding a Jury Trial, and a motion to amend his complaint.
September 29, 2015, the Court granted the motion to reopen,
but advised Mr. Wilson that he would be required to file new
motions requesting appointment of counsel and leave to amend
his complaint. Although he filed two separate motions for
preliminary relief in October 2015, Mr. Wilson did not file a
Motion to Amend (# 55) until December 7,
2015. That proposed amended complaint included all the
original defendants, added five new defendants, and asserted
two violations ...