United States District Court, D. Colorado
Brooke Jackson United States District Judge.
matter is before the Court on the February 21, 2018
Recommendation of Magistrate Judge Kristen L. Mix [ECF No.
92] to grant defendants Steggs, Tomsick, and Sharp's
motion to dismiss plaintiff's amended complaint [ECF No.
69]; grant defendants Stob, Carroll, and
Eugene's motion to dismiss plaintiff's amended
complaint [ECF No. 73]; grant defendant Steggs's motion
to dismiss plaintiff's amended complaint, filed in his
individual capacity [ECF No. 74]; and grant defendants
Tomsick and Sharp's motion to dismiss plaintiff's
amended complaint, filed in their individual capacities [ECF
No. 75]. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B);
Recommendation advised the parties that specific written
objections were due within fourteen (14) days after being
served with a copy of the Recommendation. ECF No. 92 at 27-
28. Mr. Schabow did not file an objection. However, the
mailed copy of Magistrate Judge Mix's recommendation was
returned as undeliverable. We contacted the Denver Detention
Center and learned that he had been released from that
facility and transported to a community corrections facility,
Peer One, in January 2017. He did not notify the Court of a
change of address. We then sent a copy of Judge Mix's
recommendation to Mr. Schabow at Peer One. We still did not
receive any objection.
the Court has reviewed all of the relevant pleadings and
Judge Mix's recommendation de novo. Based on that review
the Court adopts and affirms the Recommendation of Judge Mix.
Therefore, defendants' motions to dismiss must be
Judge Mix provided a detailed summary of the procedural and
factual background of this case in her recommendation.
See ECF No. 92 at 1-6. What follows is a condensed
recitation of the relevant facts. At the time the actions
giving rise to this lawsuit took place, plaintiff Brian
Schabow was an inmate at the Van Cise-Simonet Detention
Center (“DDC”) in Denver, Colorado. ECF No. 60 at
6-7. Defendants are six DDC employees. Id. at 2-4.
Mr. Schabow, proceeding pro se, filed his complaint on March
10, 2017 asserting that each of the six defendants violated
his rights under the Eighth and Fourteenth Amendments to the
United States Constitution in connection with events that
occurred on July 17, 2016. Id. at 1, 22.
day plaintiff was housed in a Special Management Unit
(“SMU”) of the DDC. Id. at 7. While
confined in the SMU, plaintiff received his meals through a
tray slot in the door. Id. According to plaintiff he
received a lunch tray with a hair in it, and, frustrated by a
verbal argument with a DDC employee not named as a party in
this suit, he threw a cup of juice onto the DDC employee
through the tray slot. Id. Plaintiff then stuck his
hands out of the tray slot and refused to move them until the
DDC employee went to get a supervisor. Id. Within
minutes defendant Steggs appeared and told plaintiff to
remove his hands from the tray slot. Id. Plaintiff
refused to do so. Id. Plaintiff alleges that
defendant Steggs responded by “violently kick[ing] the
door to the tray slot . . . caus[ing] the . . . door to slam
on [his] hands . . . crushing [his] hand - causing much
plaintiff proceeded to cover the windows of his SMU so that
none of the DDC deputies could see inside. Id.
Plaintiff alleges that after a “short time passed and
without any warning or notification” defendants
Tomsick, Sharp, and other deputies entered his SMU and
“violently assaulted” him by twisting his fingers
and punching him in the back. Id. After about 15 to
20 seconds plaintiff was removed from his SMU and allegedly
“slammed face down” onto a metal table by an
unidentified deputy. Id. at 8. Plaintiff was then
“slammed to the floor” with his legs in an
“awkward” and “painful” position.
Id. At this time, according to plaintiff, defendant
Sharp was “yelling for [plaintiff] to straighten his
legs and stop resisting so . . . Sharp could place the leg
restraints on [plaintiff].” Id. Plaintiff
claims that he tried to comply with defendant Sharp's
orders but Sharp “took out his O.P.N.'s and put
them within [plaintiff's] right ankle area and twisted
(contorted) them” in an “attempt to bring more
‘pain' to [plaintiff].” Id. At this
point it is alleged that defendant Sharp “lost his
physical self control” and placed a pair of leg
restraints onto plaintiff that were “very - very - very
tight” and caused plaintiff “much ‘pain and
plaintiff was restrained he was examined by defendant Eugene,
the DDC nurse responsible for conducting a medical
examination of his condition. Id. Plaintiff alleges
that Eugene performed a “visual look over” of his
body but failed to ask him what injuries he sustained or see
the “large gash” on his leg. Id.
Plaintiff claims Eugene was “unqualified” to
assess plaintiff's injuries, and that his actions
amounted to “deliberate indifference” to
plaintiff's medical needs. Id.
alleges that the next day, July 18, 2016, x-rays were taken
of his ankle and leg. Id. at 8-9. Plaintiff claims
that defendant Carroll examined those x-rays and determined
that no bones were broken. Id. at 9. Plaintiff
alleges that Carroll was not trained to read x-rays, and
therefore she acted “within a professional scope [she]
had no training in.” Id. Plaintiff further
alleges that defendant Carroll acted with a “culpable
state of mind” that amounted to a
“‘deliberate indifference' to
[plaintiff's] health and safety” and in the process
“wanton[ly] inflict[ed]” pain and suffering in
violation of the Eighth and Fourteenth Amendments.
Id. at 13.
plaintiff alleges that defendant Stob acted with
“deliberate indifference” amounting to a
violation of his Eighth and Fourteenth Amendment rights by
failing to evaluate plaintiff's injuries at any point
after the July 17, 2016 incident despite plaintiff's
“numerous” requests. Id. at 9, 13.
Plaintiff does allege, however, that defendant Stob visited
him on July 27, 2016 and examined him “through the
glass window” of his cell. Id. at 12.
Plaintiff alleges that during the ten days between the
incident and defendant Stob's visit he “endur[ed]
much ‘pain and suffering.'” Id.
Further, plaintiff alleges that “all of [the]
‘permanent damage' done to his ankles could have
been prevented if [Stob] would have provided [plaintiff] with
‘adequate medical care.'” Id.
Instead, plaintiff alleges that defendant Stob chose not to
provide adequate medical care and did so “with a
‘culpable state of mind.'” Id. at 9.
Plaintiff claims the injuries he received were diagnosed in
February of 2017. Id.
plaintiff claims, pursuant to 42 U.S.C. § 1983, that
each of the six defendants, in their individual and official
capacities, inflicted pain and suffering on plaintiff in
violation of his rights under the Eighth and Fourteenth
Amendments to 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
monetary damages totaling $500, 000.00. Id.
STANDARD OF REVIEW
Magistrate Judge Mix's Recommendation.
magistrate judge makes a recommendation on a dispositive
motion, the district court “must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). An
objection is sufficiently specific if it “focus[es] the
district court's attention on the factual and legal
issues that are truly in dispute.” United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
In the absence of a timely and specific objection, “the
district court may review a magistrate's report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). As
indicated, Mr. Schabow did not file an objection, but I have
reviewed the motions de novo.
Rule 12(b)(6) - Motion to Dismiss for Failure to State a
survive a 12(b)(6) motion to dismiss, the complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). While the Court must accept the
well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff,
Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir.
2002), purely conclusory allegations are not entitled to be
presumed true, Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009). However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised
above the speculative level, he has met the threshold
pleading standard. See Twombly, 550 U.S. at 556.
“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 Deaf & Blind, 173 F.3d 1226, 1236 (10th
Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562,
1565 (10th Cir. 1991)).
plead a claim for relief under 42 U.S.C. § 1983, a
plaintiff must show that the defendant, acting under color of
state law, deprived him of a right secured by the United
States Constitution or its laws. Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49-50 (1999). “A
defendant may not be held liable under § 1983 unless he
or she subjected a citizen to the deprivation, or caused a
citizen to be subjected to the deprivation.”
Lippoldt v. Cole, 468 F.3d 1204, 1219 (10th Cir.
2006) (alterations and citation omitted).
case involves a pro se party, courts will “review his
pleadings and other papers liberally and hold them to a less
stringent standard than those drafted by attorneys.”
Trackwell v. U.S. Government, 472 F.3d 1242, 1243
(10th Cir. 2007). However, it is not “the proper
function of the district court to assume the role of advocate
for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se
plaintiff's pleadings “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based . . . conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based.” Id. Pro se parties must “follow
the same rules of procedure that govern other
litigants.” Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).