Bridges v. C. Fernandez

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS [ECF. #122 & ECF. #123]

          S. KATO CREWS UNITED STATES MAGISTRATE JUDGE

         Magistrate Judge S. Kato Crews This matter is before the Court on Defendants Fernandez, Behle, and Lynch's Motion to Dismiss Fourth Amended Complaint [ECF. #122], filed December 29, 2017. Also before the Court is Defendant Fox's Motion to Dismiss Fourth Amended Complaint [ECF. #123], filed December 29, 2017. Pursuant to District Court Judge R. Brooke Jackson's Order Referring Case dated January 4, 2018 [ECF. #126], and the memoranda dated January 4, 2018 [ECF. #127] and August 3, 2018 [ECF. #136], this matter was referred to the Magistrate Judge. The Court has reviewed the Motions and related briefing, and the applicable law. Now being fully informed, the Court RECOMMENDS that Defendants' Motions be GRANTED.

         FACTUAL & PROCEDURAL BACKGROUND

         Plaintiff John Clark Bridges - a pro se prisoner in the custody of the Bureau of Prisons at the United States Penitentiary Administrative Maximum (“ADX”) - initiated this action by filing a pro se prisoner complaint [ECF. #6] asserting deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 1331. On January 26, 2017, Magistrate Judge Gordon P. Gallagher ordered Plaintiff to file an amended complaint that stated an arguable claim under the Eighth Amendment. [ECF. #10.] In his amended prisoner complaint [ECF. #11], filed on February 13, 2017, Plaintiff alleged the following, which the Court accepts as true for purposes of the Motions: he was diagnosed with depression and schizophrenia prior to his incarceration. On December 9, 2016, Defendant Fernandez threatened to physically “smash” Plaintiff for allegedly threatening other correctional officers. [Id. at p.4.] Defendant Fernandez read Plaintiff' prison file and called him a coward. In response to Plaintiff's inquiries about missing property, Defendant Fernandez stated that he did not know anything about it and then told Plaintiff, “[i]f you can't deal with it, hang yourself, ” and “do it right this time.” [Id. at p.5.]

         The following day, Defendant Fernandez returned to Mr. Bridges' cell with Defendants Behle and Lynch. While Plaintiff waited to be handcuffed, Defendant Fernandez ordered Defendant Behle to pepper spray Plaintiff. The Defendants then cut off his clothes and walked him backwards down the hall while holding his head next to one of the officer's groin area. Meanwhile, the Defendants laughed, made lewd jokes, and one of the Defendants pinched Plaintiff on the buttocks. [Id. at p.4.] Following observation by a medical provider, Plaintiff was returned to his cell, which had not been sanitized from the pepper spray. Later that day, Defendants Behle and Lynch came by Plaintiff's cell and told Plaintiff to “hang it up!” while making hand motions mimicking a person being hung by a rope.^[1] [Id. at p.5.]

         Thereafter, Senior District Court Judge Lewis T. Babcock reviewed Plaintiff's amended prisoner complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (“the court shall dismiss the case at any time if the court determines that . . . the actions or appeal is frivolous or malicious; [or] fails to state a claim on which relief may be granted). [ECF. #17.] Analyzing Plaintiff's claims, Judge Babcock concluded that Plaintiff's allegations that the Defendants held his head near an officer's groin area and then pinched his buttocks failed to state a claim under the Eighth Amendment. [Id. at pp.4-6.] Judge Babcock also concluded that Defendant Fernandez's threats to “smash” Plaintiff; the Defendants' taunts encouraging Plaintiff to hang himself; and the Defendants' lewd sexual remarks were not, by themselves, actionable. [Id. at pp.6-7.] Instead, Judge Babcock concluded that the threats and taunts were to be construed with Plaintiff's claim that the Defendants used excessive force against him when deploying the pepper spray. Finally, Judge Babcock concluded that Plaintiff had failed to state a claim against Defendant Lynch because the allegations failed to show that Lynch personally participated in the use of pepper spray against Plaintiff. [Id. at p.7.] Plaintiff's excessive force claims based on the alleged sexual assault and the verbal taunts were dismissed with prejudice. His claim against Defendant Lynch was dismissed without prejudice. [Id. at p.9.]

         Plaintiff was then permitted to amend his complaint twice more. [ECF. #83; ECF. #116.] His fourth, and final, amended complaint (“Fourth Complaint”) [ECF. #118], was docketed on October 30, 2017. The core factual allegations remain the same in the Fourth Complaint. [See id. at pp.3-12.] Plaintiff asserts six claims for relief. In Claim One, Plaintiff contends Defendants Fernandez and Behle used excessive force in violation of the Eighth Amendment when they sprayed him with pepper spray. [Id. at pp.12-14.] Claims Two, Three, and Six arise from Defendants' taunts encouraging Plaintiff to hang himself. Plaintiff contends that in so encouraging him, Defendants are liable for “[d]eliberate indifference to a substantial risk of death.” [Id. at p.15.] He also argues Defendants failed to protect him, because - after making these taunts - they never returned to check on his well-being. [Id. at p.16.] Plaintiff seeks to hold Defendants liable under a theory of “[d]eliberate indifference to inflict severe psychological torment and distress.” Specifically, he alleges that because of the taunts, he has suffered psychological distress, which has affected his “sleeping, eating, and daily functions.” [Id. at p.18.]

         In Claim Four, Plaintiff argues that Defendants Behle and Lynch violated the Eighth Amendment when they failed to prevent the pepper spray incident. He asserts that Defendant Behle should have refused to comply with Defendant Fernandez's order, and that Defendant Lynch should have physically intervened to prevent Plaintiff from being pepper sprayed. [Id. at pp.16-17.]

         Finally, in Claim Five, Plaintiff asserts a claim against Jack Fox in his official capacity as warden for “failure to properly instruct, supervise, control & discipline.”^[2] Plaintiff alleges Defendant Fox knew of his employees' misdeeds, but has not taken appropriate steps to control or discipline them. Plaintiff seeks only injunctive relief against Defendant Fox. [Id. at p.17.]

         Defendants filed their Motions to Dismiss on December 29, 2017. [ECF. #122; ECF. #123.] Plaintiff filed his Response [ECF. #129] on January 8, 2018, which was followed by Defendants' Replies [ECF. #130; ECF. #131] on January 11, 2018. Plaintiff then filed two surreplies. [ECF. #133; ECF. #134.] The filing of surreplies is not contemplated by the Federal Rules of Civil Procedure and is typically not allowed without leave of court. The Court did not request these documents or grant Plaintiff leave to file them; therefore, the Court declines to consider Plaintiff's surreplies. Plaintiff is admonished that he is expected to comply with all applicable procedural rules and Local Rules of Practice notwithstanding that he proceeds pro se.

         STANDARD OF REVIEW

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, this Court may consider exhibits attached to the Fourth Complaint without converting the Motions to motions for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent” with a defendant's liability are insufficient. Id. “[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's actions harmed him or her; and what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

         The ultimate duty of the Court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'” Morgan v. Clements, No. 12- ...