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Tillmon v. County of Douglas

United States District Court, D. Colorado

March 27, 2019

COUNTY OF DOUGLAS, in its official capacity, TONY G. SPURLOCK, Douglas County Sheriff in his official and individual capacities, J. YOUNG, Sergeant in Douglas County, in her official and individual capacities, PENRY KEITH, of the Douglas County Sheriff's Office in his official and individual capacities, and JOHN AND/OR JANE DOES of the Douglas County Deputy Sheriff Medical Dept, in his, her, or their individual and official capacities, Defendants.


          R. Brooke Jackson United States District Judge

         Plaintiff, 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.


         Judge 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.

         From 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.

         Plaintiff 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.

         Mr. 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.

         Mr. 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.

         On 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).


         The 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 objections.[1]

         “In 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 order.

         “A 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).

         III. ANALYSIS

         A) County of Douglas as an Improperly Named Defendant.

         I agree 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 it.

         B) Statute of Limitations.

         In 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)).

         I agree 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.

         In 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.

         Mr. 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 23, 2016.

         C) Statutory Tolling for Disability in Colorado.

         Plaintiff 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 ΒΆ32 (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 ...

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