Ueding v. Border

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.

         This 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]^[1] (the “Motion”). Plaintiff, who proceeds as a pro se litigant, ^[2] 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] is GRANTED.^[3]

         I. Summary of the Case ^[4]

         Plaintiff 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^[5] 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.

         In sum, 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.

         As 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.

         On 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])^[6] for his role in modifying Plaintiff's behavior modification plan. Id. at 6.^[7] 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.”).

         Plaintiff 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.

         In the 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.

         II. Standard of Review

         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); 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)).

         “A 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).

         To 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 omitted).

         “Under 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.

         III. Analysis

         Plaintiff 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).

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