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Eugene Wise v. Montez

United States District Court, D. Colorado

April 1, 2019

REUBEN ROBERT EUGENE WISE, Plaintiff,
v.
CHRISTINA MONTEZ, JANIELLE WESTERMIRE, DAVID HARMON, J. ZELLAR, DIXIE SMITH, AMANDA WRIGHT, SEPTIMBER TOPAI, MCCABE, MCDF Sargent, and MATT LEWIS, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX, MAGISTRATE JUDGE

         This matter is before the Court on Defendant Amanda Wright's Motion to Dismiss [#27][1] (the “Motion”). Plaintiff, who is proceeding pro se, [2] 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”).[3] 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.

         I. Background

         Plaintiff 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.

         On 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 up.” Id.

         The 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.

         Plaintiff 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. Id.

         Later 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.

         Plaintiff 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.” Id.

         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). 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).

         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 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).

         III. Analysis

         A. Personal Participation - Delay in Treatment and ...


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