United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX, MAGISTRATE JUDGE
matter is before the Court on Defendant Amanda Wright's
Motion to Dismiss [#27] (the
“Motion”). Plaintiff, who is proceeding pro se,
filed a Response [#37] in opposition to the Motion, and
Defendant Wright filed a Reply [#42]. Plaintiff filed a
Surreply titled “Motion for ‘Clarification'
of Documents #42, 27” [#47] (the
“Surreply”). The Motion has been referred to the
undersigned for a recommendation pursuant to 28 U.S.C. §
636(b) and D.C.COLO.LCivR 72.1(c). See [#29]. The
Court has reviewed the Motion, Response, Reply, Surreply, the
entire case file, and the applicable law and is sufficiently
advised in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the
Motion [#27] be GRANTED.
is currently an inmate with the Colorado Department of
Corrections, but throughout the period relevant to this
lawsuit he was a pretrial detainee at Mesa County Jail.
Compl. [#1] at 3-4. Plaintiff brings this lawsuit
against Defendant Wright (and others not parties to the
present Motion) pursuant to the Fourteenth Amendment,
alleging that she failed to provide him adequate medical
care. Id. at 11. Defendant Wright was a member of
the medical staff at Mesa County Jail. Id. at 5.
August 21, 2016, while a pretrial detainee at Mesa County
Jail, Plaintiff alleges he sustained two substantial
injuries. Id. The first was an injury to his left
shoulder after two officers threw him to the ground.
Id. Two hours later this injury was aggravated when
an officer tased Plaintiff in his cell. Id. at 9.
After Plaintiff was tased, the officer aggressively lifted
his arm to cut off his identification wristband. Id.
There was a popping sound and Plaintiff yelled
“ouch!” Id. Plaintiff alleges
“[t]his is when my shoulder was really messed
second injury resulted from direct contact with the taser.
Id. at 11. Plaintiff alleges that he “was
tased so long that the direct stun taser had burned through
my jail canvas shirt and white t-shirt and left 6-8
substantial burns on my back.” Id. at 9.
Later, three witnesses told Plaintiff “that smoke was
actually coming off of my back. . . .” Id.
Plaintiff also alleges that “[o]ver the next few days
the burns on my back hurt so bad that I couldn't
[sic] even sleep at night because the blankets would
rub across them.” Id. Plaintiff recalls that
immediately after the incident his shirt was cut off so that
an officer could take photographs of his back. Id.
does not allege that Defendant Wright was present when either
injury occurred. See generally Id. Instead,
Plaintiff alleges that Defendant Wright was “Medical
Staff” who responded to the tasing. Id. at 5.
Plaintiff describes that “[t]he fire department/EMS
came and assessed my injuries after being tazed
[sic] and specifically told medical to give me ice
for my shoulder . . . .” Id. at 11. Plaintiff
alleges that EMS failed to assess his second injury, and that
several officers knew that his back had multiple burns and
that they needed to be cleaned and treated, yet “[n]one
of them advised EMS to look at my back.” Id.
Plaintiff explains that he did not know at the time that he
had six-to-eight taser burns nor that he had been
“burned badly because I was still disorientated from
the incident.” Id. It is not entirely clear
whether EMS was aware of the burns on Plaintiff's back.
in the evening, Plaintiff alleges that he was refused ice by
the officers in retaliation for assaulting an officer earlier
that day. Id. Plaintiff submitted several
“kites” to seek further medical treatment but was
not seen by medical staff. Id. at 12. Plaintiff
alleges that “[a]ll in all Mesa County Sheriff's
office neglected me for 5 days knowing I had multiple
injuries and withheld medical treatment from me during that
time.” Id. As a result, Plaintiff “was
forced to endure pain and discomfort.” Id.
Plaintiff does not allege that Defendant Wright was part of
the medical staff that refused to provide treatment for five
days. See generally id.
asserts a single claim against Defendant Wright for
“[p]unishment of a [p]retrial [d]etainee - [d]enial of
[m]edical [t]reatment” under the Fourteenth Amendment.
Id. at 11. Plaintiff seeks “[n]ominal and or
compensatory damages per occurrence or maximum allowed
pursuant to law for plaintiff, punitive damages per
occurrence or maximum allowed pursuant to law [for] each
defendant[']s acts and, additional damages per day for
illegal refusal to provide medical care.” Id.
at 16. Further, Plaintiff requests “any cost in
preparation, research for suit and any attorney or expert
fees, investigators, and or conventional cost's
[sic] regarding suit, and any additional relief
[that] this court deems just proper and equitable.”
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). To survive a Rule 12(b)(6) motion,
“[t]he complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds' that discovery
will reveal evidence to support the plaintiff's
allegations.” Shero v.City of Grove, Okla.,
510 F.3d 1196, 1200 (10th Cir. 2007). “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 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, 129 S.Ct. 1937, 1949 (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 assertions devoid of
further factual enhancement.” Id. (internal
quotation marks omitted).
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 shown that
the pleader is entitled to relief, ” as required by
Fed.R.Civ.P. 8(a). Iqbal, 129 S.Ct. at 1950
(quotation marks and citation omitted).
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