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Wilson v. Wilcox

United States District Court, D. Colorado

March 13, 2018

MAURICE WILSON, Plaintiff,
v.
DONALD WILCOX; KEVIN LITVAN; PATRICK O'SHAUGHNESSY; BRIAN NAVARETTE; JOSEPH MORABITO; SHAWN ROGERS; CODY HAGANS; DOUG CULLISON; JOSE DELGADO; MICHAEL TERSKA; PAUL KLEIN; TERESA NEHLS; and CRAIG SWARTZ, Defendants.

          OPINION AND ORDER ON MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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).[1] For the following reasons, the motions are granted, in part.

         I. JURISDICTION

         The Court has jurisdiction under 28 U.S.C. § 1331.

         II. ISSUES PRESENTED

         In the 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 and Nehls;
(5) creation of an environment in which excessive physical force was likely to occur against Defendants Klein and Swartz; and
(6) creation of an environment in which medical neglect was likely to occur against Defendants Klein and Swartz.[2]

         The 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.

         With 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.

         III. FACTUAL BACKGROUND [3]

         A. Events Giving Rise to Mr. Wilson's Claims

         On 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.

         The 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 restraints.

         The 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.

         After 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.

         B. Mr. Wilson's Disciplinary Hearing [4]

         Officer 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 team member.
Plaintiff punched, elbowed, bit, and kicked as many team members as he could until staff was able to gain control of him.
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.

         C. Exhaustion of Administrative Grievances

         Based 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 following analysis.

         D. Procedural History

         Proceeding 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.

         On 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 ...


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