United States District Court, D. Colorado
TORY C. HAMMOND, Plaintiff,
DAVID NAGLE, and R. ANDERSON, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant David Nagle's
(or “Deputy Nagle”) Motion to Dismiss (or
“Motion”), filed November 26, 2018. See
[#41]. The presiding judge, the Honorable R. Brooke Jackson,
referred this matter to the undersigned pursuant to 28 U.S.C.
§ 636(b) and Memorandum dated November 27, 2018 [#42].
This court concludes that oral argument will not materially
assist in the resolution of this matter. Accordingly, upon
careful review of the Motion and associated briefing, the
entire case file, and the applicable law, I respectfully
RECOMMEND that Deputy Nagle's Motion to
Dismiss be GRANTED IN PART and DENIED IN
court draws the following facts from Plaintiff's Amended
Complaint [#18] and presumes they are true for purposes of
the instant Motion.
March 9, 2018, Plaintiff Tory C. Hammond
(“Plaintiff” or “Mr. Hammond”) filed
this civil action while incarcerated at the Boulder County
Jail (the “jail”), asserting that jail personnel
violated his constitutional rights. See [#1]. On
March 10, 2019, the Honorable Gordon P. Gallagher directed
Plaintiff to file his Complaint on the court-approved
complaint form, see [#3], which Plaintiff filed on
April 9, 2018, see [#5]. Magistrate Judge Gallagher
then directed Plaintiff to file an Amended Complaint,
see [#9], which Plaintiff did on May 16, 2018,
see [#11]. Per Magistrate Judge Gallagher's
second Order, Mr. Hammond filed his Second Amended Complaint
on June 20, 2018, see [#18], and the Honorable Lewis
T. Babcock dismissed in part the Second Amended Complaint and
drew Claims 1 and 5 to Judge Jackson and the undersigned
Magistrate Judge, see [#20].
alleges that Defendant R. Anderson violated Plaintiff's
Eighth Amendment Rights by driving “recklessly while in
control and driving the transporting van that [Mr. Hammond]
was being transported in.” [#18 at 6, 7]. Mr. Hammond
asserts that Defendant R. Anderson “ran a red light and
jerked the van and caused [him] to fly into a crevice between
the seat and the door as [he] was in cuffs and not in a seat
belt.” [Id.]. According to Mr. Hammond, this
caused “major damage” to his back, including
“pain, problems working, working out and sleeping,
” as well as serious pain when lying flat on his back.
asserts that Defendant R. Anderson and Deputy Nagle violated
his First and Eighth Amendment rights. Mr. Hammond first
asserts that Defendant R. Anderson was removed from the
“transport crew for recklessly driving [through] a red
light and injuring [Plaintiff], ” and then retaliated
against Mr. Hammond by informing other inmates that Mr.
Hammond was a child molester (which is allegedly untrue) so
that the other inmates would assault Mr. Hammond.
See [#18 at 11]. After Defendant R. Anderson
allegedly spread this untrue rumor, the other inmates
allegedly threatened and harassed Plaintiff. See
[id. at 11-12]. Despite Plaintiff informing Deputy
Nagle and other jail personnel of the harassment, Plaintiff
alleges that these other inmates assaulted him in his cell as
he returned from lunch. See [id. at 12].
Moreover, Mr. Hammond alleges that a year later Defendants R.
Anderson and Nagle knowingly placed Mr. Hammond back in the
same unit as the inmates who assaulted him previously, and
did nothing to separate Mr. Hammond from these other inmates.
R. Anderson has yet to respond to the Second Amended
Complaint, as service was returned unexecuted with the
notation that Defendant R. Anderson no longer works with the
Boulder County Sheriff's Office. See [#33].
Indeed, counsel for Deputy Nagle indicated that “it is
unclear who Defendant R. Anderson is and whether or not this
defendant has been served, ” but continued that
“[i]f R. Anderson is identified as a current or former
employee of the Boulder County Sheriff's Office,
undersigned counsel anticipates the Boulder County
Attorney's Office will represent him or her in this
action.” [#37 at 2 n.2]. To date, Defendant R.
Anderson's identity remains unknown, and no further
attempts to serve this defendant have been made.
Nagle, however, moved to dismiss Plaintiff's Second
Amended Complaint on November 26, 2018, arguing that he is
entitled to qualified immunity because Mr. Hammond cannot
establish that Deputy Nagle violated a clearly established
constitutional right. See [#41]. Plaintiff has since
responded, including filing a Sur-Reply,  see
[#45; #47], and Deputy Nagle has since replied, see
[#46]. Deputy Nagle's Motion to Dismiss is now ripe for
Recommendation, and I consider the Parties' arguments
Rule 12(b)(6) a court may dismiss a Complaint for
“failure to state a claim upon which relief can be
granted.” 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 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A
plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding
that even pro se litigants cannot rely on conclusory,
unsubstantiated allegations to survive a 12(b)(6) motion).
Rather, “a Complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009); see also Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(explaining that plausibility refers “to the scope of
the allegations in a Complaint, ” and that the
allegations must be sufficient to nudge a plaintiff's
claim(s) “across the line from conceivable to
plausible.”). 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).
applying the above legal principles this court is mindful
that Mr. Hammond proceeds pro se. This court
therefore affords Plaintiff's filings a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). But the court cannot and does not act as his
advocate, Hall, 935 F.2d at 1110, and applies the
same procedural rules and substantive law to Plaintiff as to
a represented party, see Murray v. City of
Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.2008);
Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d
1227, 1236 (D. Colo. 2012).