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Schabow v. Steggs

United States District Court, D. Colorado

March 30, 2018

BRIAN SCHABOW, Plaintiff,
v.
STEGGS, individually and official as Denver Sheriff Deputy, TOMSICK, individually and official as Denver Sheriff Deputy Sergeant, K SHARP, individually and official 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.

          ORDER

          R. Brooke Jackson United States District Judge.

         This 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[1] 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); Fed.R.Civ.P. 72(b).

         The 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.

         Nevertheless, 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 GRANTED.

         I. BACKGROUND

         Magistrate 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.

         On that 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 pain.” Id.

         Next, 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 suffering.'” Id.

         After 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.

         Plaintiff 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.

         Last, 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.

         In sum, 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.

         II. STANDARD OF REVIEW

         A. Magistrate Judge Mix's Recommendation.

         When a 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.

         B. Rule 12(b)(6) - Motion to Dismiss for Failure to State a Claim.

         To 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)).

         To 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).

         When a 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).

         III. ...


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