United States District Court, D. Colorado
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-
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