United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants Charles Border
(“Border”) and Robert King's
(“King”) Motion to Dismiss
Plaintiff's Claims One and Three of Amended Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6) and 42 U.S.C. §
1997e [#24] (the “Motion”). Plaintiff, who
proceeds as a pro se litigant,  filed a Response [#28] in
opposition, and Defendants filed a Reply [#29]. The Court has
reviewed all briefing on the Motion, the entire case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion [#24]
Summary of the Case 
is currently an inmate at the Colorado State Penitentiary in
Canon City, Colorado. Am. Compl. [#13] at 2.
Defendants are employees of the El Paso County Sheriff's
Office, where Plaintiff was a pre-trial
detainee at the time of the events relevant to this
lawsuit. Id. at 2-3. On April 3, 2018, Plaintiff
initiated this case by filing his Prisoner Complaint [#1].
Following the Court's Order Directing Plaintiff to Cure
Deficiency [#6], Plaintiff filed an Amended Complaint [#13]
on May 18, 2018, which is the operative pleading.
Plaintiff's claims arise from an incident that occurred
on November 19, 2017, while Plaintiff was being held in a
special detentions cell. Id. at 4. Plaintiff states
that he was engaged in a two-hour de-escalation period with
Defendant Border and Deputy Valentine (a non-party) in
special detentions while in handcuffs and leg shackles.
Id. Plaintiff was asked to lay on the floor but
Plaintiff did not comply. Id. Plaintiff was then
asked to stand at the back of the cell with his chest against
the wall to which Plaintiff did comply. Id.
According to Plaintiff, the “deputies” then
opened the door and rushed Plaintiff, roughly pushing him
against the wall. Id. A deputy then attempted to
remove a spit hood from Plaintiff's left hand.
Id. Plaintiff closed his hand tightly around the
spit hood and stated that the spit hood was considered
“evidence.” Id. Plaintiff alleges that,
in order to release Plaintiff's grip of the spit hood,
Defendant Border “took his own initiative and agenda
and administered a ‘thumb flex' to
[Plaintiff's] left hand.” Id. In response
to the thumb flex, Plaintiff “resisted and said that he
broke my thumb.” Id. Plaintiff was then placed
into an emergency restraint chair by Deputy Valentine who
allegedly rammed his elbow into Plaintiff's chest.
Id. Plaintiff states without further explanation
that he “took the only defense to this attack [he] had
available and used it.” Plaintiff states that there is
medical documentation of his injuries from the attack,
“including nurse documents and the X-ray taken on
[November 29, 2017].” Id.
punishment for the November 19, 2017 incident, Plaintiff
further alleges that his behavior modification plan was
modified to include the use of restraints (handcuffs and leg
shackles) during Plaintiff's pod time. Id. at 6.
Plaintiff alleges that Defendant King played some role in
this modification which lasted for fifty-two days, until
January 10, 2018. Id. Plaintiff states that this was
improper because “restraint devices are never to be
applied as punishment” according to the El Paso County
Sheriff's Office Detention Bureau Standard Operating
Procedures Manual. Id.
these facts, Plaintiff asserts an excessive force claim
(“Claim One” in the Amended Complaint [#13])
against Defendant Border under the Fifth and Eighth
Amendments for the unnecessary thumb flex that was used on
November 19, 2017. Id. at 4. Plaintiff also asserts
an excessive force claim against Defendant King (“Claim
Three” in the Amended Complaint [#13]) for his role in
modifying Plaintiff's behavior modification plan.
Id. at 6. Defendants construe Claim Three against
Defendant King as additionally asserting a
conditions-of-confinement claim. Motion [#24] at 8.
In light of this, and because this claim implicates living
conditions and disciplinary matters, the Court also construes
Claim Three as including a conditions-of-confinement claim
under the Eighth Amendment. See McCarthy v. Bronson,
500 U.S. 136, 141 (1991) (noting that conditions of
confinement include living conditions and disciplinary
measures); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (Where “the court can reasonably read
the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff's
failure to cite proper legal authority.”).
asserts his claims against Defendants Border and King in
their individual and official capacities. Am. Compl.
[#13] at 2-3. For Claim One, Plaintiff seeks $800, 000 in
compensatory and punitive damages for “serious bodily
injury.” Id. at 8. For Claim Three, Plaintiff
seeks $200, 000 in “damages for excessive use of
restraints.” Id. Plaintiff also seeks
attorneys' fees. Id.
present Motion, Defendants seek to dismiss Plaintiff's
remaining claims pursuant to Fed.R.Civ.P. 12(b)(6) and 42
U.S.C. § 1997e. [#24] at 1. Specifically, the Motion
argues that Plaintiff fails to state a claim for which relief
can be granted, that Defendants Border and King are entitled
to qualified immunity on the individual capacity claims, and
that Plaintiff fails to allege an official policy, custom or
practice to support his official capacity claims.
Standard of Review
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); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove, 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)).
claim has facial plausibility when the plaintiff pleads
factual content that allows 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). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (alteration in original)
(internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (first
alteration in original) (citation and internal quotation
Rule 8, a plaintiff must provide a ‘short and plain
statement of the claim showing that the pleader is entitled
to relief.'” Tuttamore v. Lappin, 429
Fed.Appx. 687, 689 (10th Cir. 2011) (quoting Fed.R.Civ.P.
8(a)(2)). As with Rule 12(b)(6), “to overcome a motion
to dismiss, a plaintiff's allegations must move from
conceivable to plausible.” Id. Indeed,
“Rule 8(a)'s mandate . . . has been incorporated
into the 12(b)(6) inquiry.” United States ex rel.
Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th
Cir. 2010). Rule 8 enables “the court and the
defendants to know what claims are being asserted and to
determine how to respond to those claims.”
Tuttamore, 429 Fed.Appx. at 689.
asserts that Defendants violated his rights under the Fifth
and Eighth Amendments to the United States Constitution.
Am. Compl. [#13] at 4, 6. First, the Fifth Amendment
applies only to the federal government. See Baker v.
State, No. 13-cv-01334-PAB-KLM, 2014 WL 624342, at *3
n.2 (D. Colo. Feb. 18, 2014). Neither Defendant Border nor
Defendant King is part of the federal government in his
individual capacities (nor are they members of the federal
government in their official capacities through El Paso
County). Second, because Plaintiff was a pretrial detainee at
the time of the events underlying this lawsuit, his rights
are protected under the Fourteenth Amendment's Due
Process Clause rather than the Eighth Amendment's
proscription against cruel and unusual punishment. City
of Revere v. Massachusetts General Hosp., 463 U.S. 239,
244 (1983); Berry v. City of Muskogee, 900 F.2d
1489, 1493 (10th Cir. 1990); see also Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2470 (2015). Nevertheless,
the Eighth Amendment still provides the benchmark for claims
of excessive force and cruel and unusual punishment.
Eaves v. El Paso Cty. Bd. of Cty. Commissioners, No.
16-cv-01065-KLM, 2017 WL 1243013, at *5 (D. Colo. Mar. 24,
2017); Snyder v. Spilde, No. 15-cv-02169-GPG, 2016
WL 1059612, at *2 (D. Colo. Mar. 17, 2016). Therefore, the
Court analyzes Plaintiff's claims under the Fourteenth
Amendment, which incorporates the Eighth Amendment framework,
and the Kingsley “objectively
reasonable” test for excessive force against pretrial
detainees. Kingsley, 135 S.Ct. at 2473 (2015).