Hammond v. Koger

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         This court draws the following facts from Plaintiff's Amended Complaint [#17] and presumes they are true for purposes of the instant Motion.

         Plaintiff 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].

         Two of 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^[1] “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.].

         The 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, ^[2] see [#44; #46], and the Sheriff's Defendants have replied, see [#46]. The Motion to Dismiss is now ripe for Recommendation.

         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. Qualified Immunity

         The 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).

         When, 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. ...