Hammond v. Nagle

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang United States Magistrate Judge.

         This 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 PART.

         BACKGROUND

         This court draws the following facts from Plaintiff's Amended Complaint [#18] and presumes they are true for purposes of the instant Motion.

         On 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].

         Claim 1 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. See [id.].

         Claim 5 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. See [id.].

         Defendant 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.

         Deputy 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, ^[1] 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 below.

         LEGAL STANDARDS

         I. Rule 12(b)(6)

         Under 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).

         In 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).

         II. ...