United States District Court, D. Colorado
Brooke Jackson United States District Judge
representing himself pro se, alleges that while he was held
in pretrial and presentence confinement in the Douglas County
jail, defendants denied him adequate medical care, subjected
him to racial discrimination, and imposed excessive
institutional violations without due process. Defendants move
to dismiss all claims on the grounds that some of them are
not properly named parties; the statute of limitations has
expired; the complaint fails to state a cognizable claim; and
the individual defendants are entitled to qualified immunity.
ECF No. 15. The Court referred the motion to United States
Magistrate Judge Kristin L. Mix for a report and
recommendation. Judge Mix recommends that the motion be
granted. See ECF No. 42. For the reasons discussed
below, the Recommendation is AFFIRMED and ADOPTED IN PART,
and the motion to dismiss is GRANTED in PART and DENIED in
part. The Court also denies plaintiff's motion for the
appointment of counsel. ECF No. 43.
Mix discusses the factual background of plaintiff's
claims in depth in her Recommendation, ECF No. 42 at 1-6.
Taking plaintiff's well-pled allegations in the complaint
as true, I will summarize the pertinent background briefly.
Plaintiff was in the custody of the Douglas County Detention
Center (DCDC) at all times relevant to this lawsuit. ECF No.
1 at ¶13. He was placed in housing units that consisted
of 22 or 23 prisoners and was the only African American
inmate in these units. Id. at ¶35. He was often
antagonized by white inmates because of his race and was
physically attacked or provoked to fight in self-defense on
at least 23 occasions. Id. at ¶14. Plaintiff
complained about these racial attacks but detention center
officials refused to intervene at times or were slow to
intervene at other times, purportedly exhibiting the same
sentiments as Mr. Tillmon's attackers. Id. at
¶¶15-17. Mr. Tillmon alleges that these officials
were acting in conformity with racially discriminatory
practices and customs maintained by the Douglas County
Sheriff Tony Spurlock within the Douglas County Sheriff
Department. Id. at ¶53.
one of these attacks, Mr. Tillmon was seriously injured. On
November 26, 2015 Mr. Tillmon broke his hand defending
himself from an attack by a white inmate. An unidentified
DCDC official left him in a segregation cell for 8 hours
instead of obliging Mr. Tillmon's repeated requests to be
taken to the infirmary. Id. at ¶20. Eventually
a nurse saw him during a routine “med-line run”
and had him transported to the Castle Rock Adventists
Hospital for treatment. Id. at ¶¶20, 23.
also alleges that Douglas County failed to implement adequate
protocol to ensure appropriate continuity of Plaintiff's
mental health care while he was at DCDC. Id. at
¶24. While incarcerated at other facilities, Mr. Tillmon
was receiving his prescribed mental health medication:
“Trazadone.” Id. at ¶27.
“Plaintiff believed the Trazadone prescription would
have automatically followed him[, ] . . . [and] he kited the
Douglas County Mental Health Medical Dept., asking it to
verify and then supply his immediate mental health serious
medical needs and current prescription for Trazadone.”
Id. ¶¶27-28. However, despite his
requests, Plaintiff was not provided Trazadone nor treated by
any provider at DCDC for his mental health needs.
Id. at ¶¶29-31.
Tillmon also describes 20 disciplinary actions he incurred
while at DCDC. He states that these write-ups, which resulted
in “lockdowns” for him, were “racially
targeted” and “petty.” Id. at
¶43. As examples, Mr. Tillmon was disciplined for giving
another inmate sugar and for not doing a linen exchange the
morning after he spent the night in his cell assisting his
cellmate in obtaining medical care as he was having seizures.
Id. at ¶¶41-43. He also describes how
after a fight with a white inmate, he received 60 days in
solitary confinement but the white inmate only received 3
days for the same fight. Id. at ¶45. Mr.
Tillmon states that he was not given any written notice of
charges before the scheduled hearings for these infractions
nor ever received an answer to any of his appeals for the
charges. Id. at ¶39. Defendant Sergeant Deputy
Young was the hearing and sanctioning officer in these
disciplinary hearings, and plaintiff states that in each
case, she was aware that the disciplinary actions were the
result of racial discrimination and still found him guilty of
every infraction. Id. at ¶35.
Tillmon also asserts that Defendant Keith Penry refused to
produce a videotape despite requests from Mr. Tillmon's
criminal defense counsel to produce this video. Plaintiff
believes the videotape would have shown a white inmate
insulting Mr. Tillmon with racial epithets, Mr. Tillmon and
the inmate walking into a cell and fighting and then walking
out of a cell. Mr. Tillmon states that for this incident he
received a harsher sanction than the white inmate.
Id. at ¶¶47-50. He argues that this
attempt to shield review of the videotape constitutes a
violation of due process and/or a violation of 42 U.S.C.
§ 1985 as a conspiracy to interfere with civil rights,
preventing an officer from performing duties, or obstructing
justice. Id. at ¶52.
February 24, 2016, Judge William J. Martinez sentenced
Plaintiff in the criminal case for which he had been held in
pretrial detention at DCDC. See ECF No. 812 in
Criminal Action No. 14-cr-00231-WJM. Prior to this
sentencing, Mr. Tillmon's attorney moved for a downward
departure from the guidelines based on the harshness of his
pretrial and presentence confinement at DCDC. This motion
described how Mr. Tillmon was the target of racial
discrimination and taunting from both inmates and staff, how
guards ignored or were slow to intervene when he was attacked
by other inmates and how when he defended himself, he had
been the individual written up with institutional violations
while other, non-African American individuals were not
disciplined or disciplined less harshly. ECF No. 1 at
¶68; ECF No. 708 in Criminal Action No. 14-cr-00231-WJM
at 7. Judge Martinez granted Plaintiff's motion for a
downward variance from the federal minimum sentence, in part
“due to the harshness of the time spent in pretrial
confinement . . . .” ECF No. 1 at ¶63 (quoting ECF
No. 825 at 3 in Criminal Action No. 14-cr-00231-WJM).
STANDARD OF REVIEW
Recommendation advised the parties that specific written
objections were due within fourteen (14) days after being
served with a copy of the Recommendation and that failure to
make timely objections may bar de novo review by the district
judge of the magistrate judge's proposed findings and
recommendations. ECF No. 42 at 23-24. Despite this
advisement, plaintiff did not file any
the absence of timely objection, the district court may
review a magistrate . . . [judge's] report under any
standard it deems appropriate.” Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)). In
exercising my discretion, partly due to the fact that the
recommendation was twice returned as undeliverable,
see n.1 supra, I have conducted a de novo review of
the motion and recommendation. In doing so, I came to the
same conclusions as Judge Mix on the issues of the purported
class action relief, ECF No. 42 at 8-9, the mootness of
injunctive relief, id. at 10-11, and plaintiff's
failure to state a claim under 42 U.S.C. § 1981,
id. at 12-13. I adopt Judge Mix's findings
entirely as to these issues. However, I come to a different
conclusion regarding the effect of the statute of limitations
on plaintiff's claims under 42 U.S.C. § 1983 and 42
U.S.C. § 1985. Because I find that these claims are not
barred by the statute of limitations, I also consider
defendants' other arguments under Rule 12(b)(6) in this
pro se litigant's pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
[I]f 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, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.
Id. This rule applies to all proceedings involving a
pro se litigant. Id. at 1110 n.3. At the same time,
the Court cannot “assume the role of advocate for the
pro se litigant.” Id. at 1110. Pro se
litigants must follow the same procedural rules that govern
other litigants. Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994).
County of Douglas as an Improperly Named
with Judge Mix's conclusion that the County of Douglas is
an improperly named party in this case. According to Colo.
Rev. Stat. § 30-11-105 the “Board of County
Commissioners of Douglas County” must be named as the
defending party rather than “County of Douglas”
to establish jurisdiction. However, I believe that judicial
economy would be better served by granting plaintiff leave to
amend his complaint rather than dismissing this party
outright. See, e.g., Wilkenson v. Colorado, 2013 WL
6978510 at *5 (D. Colo. Dec. 17, 2013) (explaining that the
Court did not have jurisdiction over the county because the
plaintiff did not properly name the Board and County
Commissioners of the County of Mesa, but explaining that
“a simple amendment” to the complaint
“would easily cure this technical defect”).
Though the court in Wilkenson dismissed the county,
it did so because the statute of limitations independently
barred suit against the county. In doing so, the court also
referred to Colorado state law cases where the court gave the
plaintiff an opportunity to amend the complaint instead of
dismissing the county defendant. I grant Mr. Tillmon leave to
amend his complaint to cure this technical defect, and I will
analyze the county's other defenses in this order by
using “Douglas County” as a shorthand to refer to
Statute of Limitations.
their motion to dismiss, defendants argue that
plaintiff's claims are time barred. A statute of
limitations defense may be resolved on a motion to dismiss
where application of the limitations period is apparent on
the face of the complaint. Dummar v. Lummis, 543
F.3d 614, 619 (10th Cir. 2008). “Limitations periods in
§ 1983 suits are to be determined by reference to the
appropriate state statute of limitations and the coordinated
tolling rules . . . .” Hardin v. Straub, 490
U.S. 536, 539 (1989). The Tenth Circuit has held that the
statute of limitations that should be applied to § 1983
actions in Colorado is that for Colorado personal injury
suits - two years from the time that the cause of action
accrued. Fogle v. Pierson, 435 F.3d 1252, 1258 (10th
Cir. 2006) (citing Blake v. Dickason, 997 F.2d 749,
750-51 (10th Cir. 1993)). Federal law, however, governs the
issue of when a cause of action accrues. “A § 1983
action accrues when facts that would support a cause of
action are or should be apparent.” Id. (citing
Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir.
1995) (quotation marks omitted)).
with Judge Mix's determinations of the accrual dates for
Mr. Tillmon's claims concerning his request for video
footage, of denial of medical care, racial discrimination and
denial of due process. ECF No. 42 at 15-18. To summarize
briefly, Mr. Tillmon entered pretrial detention at DCDC
around December 2014 or early 2015. For his denial of mental
health treatment claim, he states that after arriving at DCDC
he would regularly attend the Med-line expecting to receive
his already prescribed mental health medication. ECF No. 1 at
¶26. While a precise date is impossible to fix based on
the allegations of the complaint, based on his description of
his efforts seeking medical care, his claim with respect to
his mental health care must have accrued within the first few
months of his incarceration, sometime in spring 2015. His
claim for inadequate medical care for his broken hand accrued
on November 26, 2015, the date on which plaintiff states that
the injury occurred and he was left untreated for several
hours. Id. at ¶19.
describing his due process claims, plaintiff refers in his
complaint to a filing that was docketed on December 8, 2015
that discusses all the disciplinary actions taken against him
at DCDC. ECF No. 1 at ¶58 (incorporating ECF No. 715 at
5 in Criminal Action No. 14-cr-00231-WJM). Though plaintiff
does not describe the dates relating to the infractions,
disciplinary hearings, and subsequent discipline, they must
have all occurred no later than December 8, 2015 given the
fact they were described in this filing. Similarly,
plaintiff's complaint that Defendant Penry refused his
request to produce the video footage prior to his filing of a
Motion for a Variant Sentence on December 3, 2015, must have
accrued no later than December 3, 2015. The motion for a
variant sentence also describes the racial harassment and
discrimination that Mr. Tillmon alleges. ECF No. 1 at
¶68 (describing ECF No. 708 in Criminal Action No.
14-cr-00231-WJM at 7). Therefore, this claim must have also
accrued at the latest by December 3, 2015.
Tillmon filed his complaint in the present action on February
27, 2018. Mr. Tillmon invokes the prison mailbox rule, which
can make an inmate filing timely if the inmate gives it to
prison officials for mailing prior to the filing deadline
even if the court receives the filings after the deadline.
Wright v. Long, 743 Fed.Appx. 239, 241 (10th Cir.
2018) (unpublished). Mr. Tillmon gave his complaint to prison
officials for mailing on February 23, 2018. ECF No.1-1 at 2.
Thus, unless an exception applies, all of Mr. Tillmon's
claims are time barred because they accrued prior to February
Statutory Tolling for Disability in
alleges in his complaint that while incarcerated at DCDC, he
had “immediate mental health serious medical needs,
” ECF No. 1 at ¶28, a “mental health
diagnosis, ” id. at ¶31, and
“suffer[ed] from anxiety and panic attacks three to
four times a week, ” id. at ¶32 (citing
ECF No. 708 at 5 in 14-cr-00231-WJM). He asserts in his
response to the motion to dismiss that his mental condition
made him unable to pursue his legal claims while incarcerated
at DCDC. ECF No. 26 at 16-17. He argues that because his
mental health treatment of Trazadone was not reinstated until