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Bridges v. Fernandez

United States District Court, D. Colorado

November 16, 2018

JOHN CLARK BRIDGES, Plaintiff,
v.
C. FERNANDEZ, Lieutenant, D. BEHLE, Officer, J. LYNCH, Officer, JACK FOX, Complex Warden, and JOHN DOE, ADX Warden Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE RECOMMENDATION

          R. Brooke Jackson United States District Judge

         This 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.

         I. Background

         Magistrate 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.

         This 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.

         II. Standard of Review

         A. Magistrate Judge Crews' 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).

         Mr. 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).

         After 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.

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

         Because 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 (1976).

         III. Analysis

         A. Failure to Exhaust ...


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