United States District Court, D. Colorado
RECOMMENDATION ON MOTION TO DISMISS
Reid Neureiter Magistrate Judge
before the Court is Defendants Sgt. Brian McKinnon's and
Sgt. Ryan Jaques' Motion to Dismiss the Amended Complaint
(Doc. # 40) (Docket No. 42), in which Defendants McKinnon and
Jaques ask the Court to dismiss Plaintiff Douglas
Lehman's claims against them pursuant to Fed.R.Civ.P.
12(b)(6). Having carefully considered the briefing, record,
discussion at the September 18, 2018 Status Conference
(see Docket No. 46), and applicable law, the Court
recommends that the motion be denied for the reasons
case is brought by Mr. Lehman, who is proceeding pro
relating to his treatment by staff at the Limon Correctional
Facility following his assault of Sgt. McKinnon on February
7, 2017. (See generally Docket No. 40). Mr. Lehman
alleges that excessive force was used against him when he was
lying on his stomach, “motionless and silent and in
both hand and leg shackles.” (Docket No. 40 at 5). He
further alleges that while he was in that position Sgt.
McKinnon leaned over and sprayed pepper spray in his face.
Id. at 6. Mr. Lehman also alleges that Sgt. Jaques
failed to protect him and failed to report Sgt.
McKinnon's actions. Id. at 12-13. In response,
Sgt. McKinnon and Sgt. Jaques filed the instant motion to
dismiss. Defendants' only argument in support of
dismissal is that Mr. Lehman's damages claim is barred by
Heck v. Humphrey, 512 U.S. 477 (1994). (Docket No.
42 at 3-5). On September 18, 2018, the Court held a Status
Conference in this case and also heard argument on the motion
to dismiss. (Docket No. 46 at 1).
Rule of Civil Procedure 12(b)(6) permits the Court to dismiss
for “failure to state a claim upon which relief can be
granted.” The purpose of a motion to dismiss pursuant
to Rule 12(b)(6) is to test “the sufficiency of the
allegations within the four corners of the complaint after
taking those allegations as true.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994);
Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be
dismissed for “failure to state a claim upon which
relief can be granted”). “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 the Deaf
& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting Twombly, 550
U.S. at 570)). “Thus, ‘a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is
very remote and unlikely.'” Dias v. City &
Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(quoting Twombly, 550 U.S. at 556).
argue that “Mr. Lehman's Eighth Amendment claim is
a veiled attempt to collaterally attack his conviction for
first degree assault on a corrections officer-Sgt.
McKinnon-which is a class 3 felony.” (Docket No. 42 at
3). Defendants rely on Heck v. Humphrey, 512 U.S.
477 (1994) for the argument that Mr. Lehman is challenging
his state court criminal conviction. However, Defendants'
argument is premised on the idea that Mr. Lehman's
allegations against them are part of one incident that
happened on February 7, 2017. While it is true that a person
cannot bring a § 1983 action for damages based on an
allegedly invalid conviction or sentence unless the
conviction or sentence has been previously invalidated,
Heck at 487, Mr. Lehman alleges that excessive force
was employed against him after his assault on Sgt.
McKinnon ended. Mr. Lehman does not dispute the validity of
his assault conviction. Instead, he avers that he himself was
assaulted in retaliation after he walked away and laid on his
stomach on the ground. (Docket No. 40 at 4-5). There is a
fact issue about whether that incident is a separate incident
or part of the assault on Sgt. McKinnon.
alleges that after the assault on Sgt. McKinnon ended,
Plaintiff laid on the ground and was shackled, and then Sgt.
McKinnon sprayed pepper spray in his face. The allegations in
the complaint, therefore, do not necessarily support the
conclusion that Mr. Lehman's lawsuit is an attack on his
criminal conviction relating to his attack on Sgt. McKinnon.
Instead, Mr. Lehman's claims in this case appear to
relate to a second incident. As Heck made clear,
when a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in favor
of the plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if
the district court determines that the plaintiff's
action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit.
Id. (emphasis in original). Here, we face the latter
scenario. Plaintiff is not challenging the conduct for which
he was convicted. He is challenging Sgt. McKinnon's
actions following the assault for which Mr. Lehman was
convicted. In addition to the fact that the allegations in
the complaint make clear that Mr. Lehman is bringing his
claims about his treatment by these Defendants after
his assault on Sgt. McKinnon concluded, at the September 18,
2018 Status Conference counsel for these Defendants conceded
that there are factual issues that preclude the Court from
finding that Mr. Lehmans' claims are barred by Heck
v. Humphreys because of the alleged delay in time
between Mr. Lehman's assault on Sgt. McKinnon and the
pepper spraying incident for which Mr. Lehman now seeks
damages. In other words, viewing the allegations in the light
most favorable to Mr. Lehman, the Court cannot conclude as a
matter of law that a judgment in favor of Mr. Lehman would
necessarily constitute a collateral attack on his criminal
conviction. Given that the motion to dismiss argues only that
this case should be dismissed because Heck bars Mr.
Lehman's claim for damages and the Court finds that,
given the allegations of the complaint, Heck does
not necessarily bar his damages claim, the Court concludes
that the motion to dismiss should be denied.
foregoing reasons, it is RECOMMENDED that Defendants Sgt.
Brian McKinnon's and Sgt. Ryan Jaques' Motion to
Dismiss the Amended Complaint (Doc. # 40) (Docket No. 42) be
ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall
have fourteen (14) days after service of this Recommendation
to serve and file any written objections in order to obtain
reconsideration by the District Judge to whom this case is
assigned. A party's failure to serve and file specific,
written objections waives de novo review of the
Recommendation by the District Judge, Fed.R.Civ.P. 72(b);
Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also
waives appellate review of both factual and legal questions.
Makin v. Colo. Dep't of Corr., 183 F.3d 1205,
1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d
1411, 1412-13 (10th Cir. 1996). A party's objections to
this Recommendation must be both ...