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Johnson v. Aucoin

United States District Court, D. Colorado

February 20, 2019

CALVIN JOHNSON, Plaintiff,
v.
SERGEANT AUCOIN, and ERIN FERGUSON, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANT SERGEANT AUCOIN'S MOTION TO DISMISS (DKT. #21)

          N. Reid Neureiter United States Magistrate Judge

         This case is before the Court pursuant to an Order (Dkt. #22) issued by Judge R. Brooke Jackson referring Defendant Sergeant Aucoin's Motion to Dismiss. (Dkt. #21.) The Court has carefully considered the motion and Plaintiff Calvin Johnson's Response.[1] (Dkt. #24.) On December 12, 2018, the Court heard argument on the subject motion. (Dkt. #37.) The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and makes the following recommendation.

         I. Background

         The following allegations are taken from the relevant, non-dismissed portions of Mr. Johnson's Amended Prisoner Complaint. (Dkt. #8.) Mr. Johnson, who is proceeding pro se, [2] is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”) at the Sterling Correctional Facility (“SCF”) in Sterling, Colorado. Mr. Johnson asserts a single, individual capacity claim against Sergeant Aucoin, a correctional officer at SCF. Mr. Johnson alleges that Sergeant Aucoin violated his Eighth Amendment rights by subjecting him to excessive force “by introducing weaponized-gas into my cell on 12-26-2017 when I was without a weapon and alone against multiple officers and also for introducing weaponized-gas a second time while I was layed [sic] out on the floor unconscious.” (Dkt. #8 at 8.)

         Sergeant Aucoin has filed a motion to dismiss (Dkt. #21) in which he makes the following arguments: (1) Mr. Johnson's claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2) Sergeant Aucoin is entitled to qualified immunity because Mr. Johnson's amended complaint fails to state an Eighth Amendment excessive force violation, and because Mr. Johnson fails to allege a violation of clearly established law; (3) Mr. Johnson is not entitled to damages under the Prison Litigation Reform Act (PLRA); and (4) Mr. Johnson's claim for injunctive relief fails. After setting forth the applicable legal standard, I will address each of these arguments in turn.

         II. Standard

         Federal Rule of Civil Procedure 12(b)(6) permits the Court to dismiss claims for “failure to state a claim upon which relief can be granted.” The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1109. To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” (quoting Twombly, 550 U.S. at 570)).

         Plausibility, in the context of a motion to dismiss, means the plaintiff pleaded facts which allow “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). “Asking for plausible grounds, ” however, “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” to support the asserted claim. Twombly, 550 U.S. at 556. But as the Twombly court clarified, “of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of these facts is improbable, and that a recovery is very remote and unlikely.” Id. (internal quotation and citation omitted).

         The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. 556 U.S. at 679-81. As the Iqbal court stressed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Similarly, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). Thus, “[w]here a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted). Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         In assessing a motion to dismiss under Rule 12(b)(6), the usual rule is that a court should consider no evidence beyond the pleadings. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1216 (10th Cir. 2007). “If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). However, “the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Alvarado, 493 F.3d at 1216 (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)); see also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[i]f a document is referenced in and central to a complaint, a court need not convert the motion but may consider that document on a motion to dismiss.”). In addition, “facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir. 2006).

         Here, because Mr. Johnson is proceeding pro se, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). But just like any litigant, a pro se plaintiff's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court also may not assume that a pro se plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). And a plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         III. Analysis

         Sergeant Aucoin argues Mr. Johnson's excessive force claim against him fails because: it is barred by Heck; he is entitled to qualified immunity; and Mr. Johnson is not entitled to damages under the PLRA. Sergeant Aucoin also argues that Mr. Johnson is not entitled to any injunctive relief against him. I agree Mr. Johnson is not entitled to any injunctive relief, and therefore RECOMMEND that this claim be dismissed. However, at this stage of the proceedings, I disagree with Sergeant Aucoin's three arguments concerning dismissal of Mr. Johnson's excessive force claim, and therefore I RECOMMEND that Sergeant Aucoin's motion to dismiss this claim be DENIED.

         A. Heck v. Humphrey Does not Apply

         According to Defendants, on December 26, 2017, Mr. Johnson:

attempted to assault staff who were collecting dinner trays by throwing a cup full of feces and urine upon them. He then covered his cell window and refused to respond to staff. When Sergeant Aucoin and a cell extraction team arrived at the cell later on, and [Mr. Johnson] refused to respond to multiple directives, [Mr. Johnson] threw a container of feces and urine out of the tray slot on his cell door, striking Sergeant Aucoin in the head, face and body. After still refusing to comply with staff directives, gas was deployed to get Plaintiff to comply.

(Dkt. #21 at 5; see also Dkt. #21-2.[3])

         Based on this incident, criminal assault charges were lodged against Mr. Johnson. (Dkt. #21 at 4.) Mr. Johnson also “was charge[d] with and convicted of several Code of Penal Discipline violations, ” including “Advocating or Creating a Facility Disruption, Tampering with Locks or Security Devices, and Assaulting Staff with a Hazardous Liquid.” (Id.; see also Dkt. #21-2.) According to Sergeant Aucoin, “[a] judgment in favor of [Mr. Johnson] would necessarily imply the invalidity of ...


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