United States District Court, D. Colorado
ORDER ADOPTING MAGISTRATE JUDGE
Brooke Jackson United States District Judge
matter is before the Court on Defendants D. Behle, C.
Fernandez, J. Lynch, and Jack Fox's motions to dismiss
[ECF Nos. 122, 123] and the recommendation of Magistrate
Judge S. Kato Crews [ECF No. 137] that the Court grant the
motions for failure to exhaust administrative remedies. The
recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b). After reviewing the briefings and relevant law, I am
not convinced that Mr. Bridges has failed to exhaust
administrative remedies, but I nevertheless agree with the
recommendation that the motions to dismiss [ECF Nos. 122,
123] should be GRANTED.
Judge Crews provided a summary of the procedural and factual
background of this case in his Recommendation. See
ECF No. 137 at 1-5. To briefly highlight the relevant facts,
John Clark Bridges is an inmate in the custody of the Bureau
of Prisons at the United States Penitentiary Administrative
Maximum (“ADX”) facility. Defendants Behle,
Fernandez, and Lynch are correctional officers, and Defendant
Fox is the warden at ADX. Plaintiff originally filed a
complaint alleging excessive force based upon a sexual
assault, verbal taunts and the use of pepper spray. Following
the screening process undertaken pursuant to 28 U.S.C. §
1915(e)(2)(B), Judge Babcock dismissed Plaintiff's
excessive force claims based on the alleged sexual assault
for failure to state a claim under the Eighth Amendment and
construed the verbal taunts as part of Plaintiff's claim
that Defendants used excessive force in deploying the pepper
spray. ECF No. 17 at 4-6.
case was then assigned to this Court and Magistrate Judge
Crews. Plaintiff's Fourth Amended Complaint [ECF No.
118], the operative complaint here, asserts six claims
pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C.
§1331 for relief against Defendants Fernandez, Behle,
Lynch and Fox. The claims are: (1) excessive force against
Defendants Fernandez, Behle and Lynch; (2) deliberate
indifference to a substantial risk of death against
Defendants Fernandez, Behle and Lynch; (3) failure to protect
against Defendants Fernandez, Behle and Lynch; (4) failure to
intervene against Defendants Behle and Lynch; (5) failure to
property instruct, supervise, control and discipline against
Defendant Fox and John Doe, who plaintiff alleges is also a
warden; and (6) deliberate indifference to inflict severe
psychological torment and distress against Defendants
Fernandez, Behle and Lynch. Defendants filed the pending
Motions to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. ECF No. 122, 123. Magistrate Judge
Crews reviewed the motions to dismiss and recommended that
they be granted. ECF No. 137. Mr. Bridges timely objected to
Judge Crews' recommendation, and the defendants filed a
timely response. ECF Nos. 138, 139.
Standard of Review
Magistrate Judge Crews' 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).
Bridges timely and sufficiently objected in part to
Magistrate Judge Crews' recommendation, arguing that he
did exhaust his administrative remedies for claims one and
four. ECF No. 138. Mr. Bridges does not object to Magistrate
Judge Crews' conclusion that he failed to exhaust his
administrative remedies with respect to claims two, three,
five, and six (the claims related to defendants' alleged
statements telling Mr. Bridges to hang himself and against
Warden Fox for failure to supervise).
reviewing the applicable law, briefings, and the report and
recommendations, I agree with Magistrate Judge Crews'
conclusion that Mr. Bridges did not exhaust administrative
remedies with respect to claims two, three, five, and six and
adopt the report and recommendation of Magistrate Judge Crews
dismissing these claims without prejudice and without further
discussion. I now review the dismissal of claims one and
four, related to the use of pepper spray, de novo.
Rule 12(b)(6) - Motion to Dismiss for Failure to State a
my conclusion is based on failure to state a claim, I address
that standard. To survive a Rule 12(b)(6) motion to dismiss,
the complaints 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)). A plausible claim is
a claim that “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). 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,
Iqbal, 556 U.S. at 681. 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, e.g.,
Twombly, 550 U.S. at 556; Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). The
Court may properly consider attached exhibits and documents
incorporated into the complaint by reference in evaluating a
motion to dismiss, and allegations that contradict the
contents of the complaint's exhibits or document
incorporated therein by reference are not entitled to a
presumption of truth. Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009); Rader v.
Citibank, 2014 WL 5152357, at *2 (D. Colo. Oct. 14,
2014). For a Bivens claim, Plaintiff must plead
specific facts showing that each Defendant personally engaged
in conduct that violated Plaintiff's constitutional
rights. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1214
(10th Cir. 2003); Kite v. Kelly, 546 F.2d 334, 338
Failure to Exhaust ...