United States District Court, D. Colorado
TORY C. HAMMOND, Plaintiff,
KARMEN KOGER, and MATTHEW MORSTICA, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court Defendants Karmen Koger
(“Defendant Koger”) and Matthew Marostica's
(“Defendant Marostica”) (collectively,
“Sheriff's Defendants”) Motion to Dismiss (or
“Motion”), filed November 26, 2018. See
[#40]. 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 [#41].
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 the Sheriff's
Defendants' Motion to Dismiss [#40] be GRANTED IN
PART and DENIED IN PART.
court draws the following facts from Plaintiff's Amended
Complaint [#17] and presumes they are true for purposes of
the instant Motion.
Tory C. Hammond (“Plaintiff” or “Mr.
Hammond”) initiated this action by filing his pro
se prisoner Complaint on March 9, 2018, alleging that
while incarcerated at the Boulder County Jail (the
“jail”) several jail officers violated his
constitutional rights. See [#1]. Following orders
from the Honorable Gordon P. Gallagher, Plaintiff filed
Amended Prisoner Complaints on April 9 and May 21, 2018,
respectively. See [#4; #11]. On June 1, 2018,
Magistrate Judge Gallagher directed Plaintiff to file a
Second Amended Prisoner Complaint on or before July 2, 2018,
later extended by Magistrate Judge Gallagher to July 7, 2018.
See [#12; #14]. On June 20, 2018, Plaintiff filed
his Second Amended Prisoner Complaint [#17], and on August
28, 2018, the Honorable Lewis T. Babcock dismissed in part
Plaintiff's Second Amended Prisoner Complaint and drew
his remaining three constitutional claims to Judge Jackson
and the undersigned. [#19].
Plaintiff's remaining claims, Claims 2 and 5, allege that
Defendant Koger, a Sergeant at the jail, violated
Plaintiff's Eighth Amendment rights by (1) placing Mr.
Hammond in the hole “for 5 days with no hour out, no
shower, no phone calls, no tooth past[e], no tooth brush, no
soap[, ] and no mail out” (“Claim 2”) and
by (2) placing Mr. Hammond in the hole where human feces and
urine were “all over the cell, ” including
“all up and down the walls and floor and bedding”
(“Claim 5”). [#17 at 7, 10]. In his third
constitutional claim, Claim 12, Mr. Hammond alleges that
Defendant Marostica would walk down the halls of the jail
with a metal wand and “hit/punch/jab the metal
door” of the cells every 30 minutes. See
[id. at 17]. Plaintiff alleges that this caused him
to lose sleep, which led to psychological problems, and
caused “major fights or issues between inmates and
deputies.” [Id.]. Plaintiff also claims this
occurred for over three years, and that Defendant Marostica
was purposefully louder at Plaintiff's cell as a form of
torture. See [id.].
Sheriff's Defendants moved to dismiss Plaintiff's
Second Amended Prisoner Complaint on November 26, 2018.
[#40]. They argue that they are entitled to qualified
immunity because Mr. Hammond cannot demonstrate that they
violated any clearly established constitutional right.
See [id.]. Plaintiff has since responded,
including filing a Sur-reply,  see [#44; #46], and the
Sheriff's Defendants have replied, see [#46].
The Motion to Dismiss is now ripe for Recommendation.
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).
doctrine of qualified immunity protects government officials
from individual liability for actions carried out while
performing their duties so long as their conduct does not
violate clearly established constitutional or statutory
rights. Washington v. Unified Gov't of Wyandotte
Cty., 847 F.3d 1192, 1197 (10th Cir. 2017). To
facilitate the efficient administration of public services,
the doctrine functions to protect government officials
performing discretionary actions and acts as a “shield
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Once a defendant has asserted a defense of
qualified immunity, the burden shifts to the plaintiff who
must establish that (1) the defendant violated a
constitutional right, and (2) the right was clearly
established at the time of the defendant's action.
Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir.
2015). Courts, however, have discretion to consider the
prongs in either order. See Pearson v. Callahan, 555
U.S. 223, 236 (2009).
as here, a defendant moves to dismiss a plaintiff's
§ 1983 claim based on qualified immunity, “the
plaintiff must allege sufficient facts that show-when taken
as true-the defendant plausibly violated his constitutional
rights, which were clearly established at the time of
violation.” Schwartz v. Booker, 702 F.3d 573,
579 (10th Cir. 2012). Mr. Hammond's Second Amended
Prisoner Complaint need not contain all the
necessary factual allegations to sustain a conclusion that
the Sheriff's Defendants violated clearly established
law. See Robbins, 519 F.3d at 1249 (recognizing that
such a heightened pleading standard is not required) (quoting
Breidenbach v. ...