Espinoza v. Ramisch

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty United States Magistrate Judge

         This action arises out of the incarceration of Plaintiff Michael Shannon Espinoza (“Espinoza”), an inmate at the Sterling Correctional Facility (the “SCF”), the Colorado State Penitentiary (“CSP”), and Buena Vista Correctional Facility (“BVCF”) at various relevant times. Espinoza proceeds in this action pro se and alleges three claims against the various Defendants: (1) violation of his Eighth Amendment right to be free from cruel and unusual punishment; (2) violation of his Eighth Amendment right against Defendants' deliberate indifference to his serious need for medical care; and (3) violation of his federal and state constitutional rights as well as violation of administrative regulations and state statutes due to Defendants' failure to protect him from harm while incarcerated. In response, Defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P.12(b)(6) [filed September 4, 2018; ECF No. 26]. For the reasons that follow, this Court respectfully recommends that the Honorable R. Brooke Jackson grant in part and deny in part the Defendants' motion.

         BACKGROUND

         I. Statement of Facts

         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Espinoza in the operative Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On or about February 28, 2017, Espinoza arrived at the SCF. He immediately informed staff that he was no longer a member of the Sureno gang, and that his life was in danger from Sureno gang members at SCF. During the intake process, Espinoza discussed his safety concerns with the intake officers, and those concerns were documented. He also completed a removal form and was ordered back to General Population Unit 4. After reaching Unit 4, Espinoza was approached and threatened by three Sureno gang members. Espinoza promptly notified the Unit 4 lieutenant of the threat, but his report was ignored; instead, he was ordered back to his cell and told to contact the day shift. That same night, Espinosa was attacked by the same three Sureno gang members who had threatened him earlier. A February 28, 2017 Incident Report form titled, “Incident #991320, ” reflects that Espinosa and three other offenders were “fighting in LU 4 A-Pod.” Compl. Ex. B. After the fight, Plaintiff was removed from General Population and sequestered for fifteen days. Id.

         On or about March 15, 2017, Espinoza was placed back in the General Population Unit. On April 14, 2017, Espinoza was attacked for a second time by two Sureno gang members. Espinoza was again removed from General Population and sequestered. While sequestered, Espinoza spoke with Defendant Robert Dick and other unknown personnel of SCF. Case Manager Dick told Espinoza he had custody issues at all Level II facilities and would be moved to a private prison.

         On April 21, 2017, Espinoza was placed back in General Population at SCF. On that same day, Espinoza was again approached and threatened by numerous Sureno gang members. Espinoza immediately informed Defendant Jackson that his safety was in jeopardy. Lieutenant Jackson sent Espinoza back to General Population and contacted the shift commander. Jackson also had Espinoza complete a second set of custody issue paperwork and then ordered him back to General Population. Espinoza refused to return to General Population and was placed in segregation for seventeen days; he was later approved for transfer to CSP, which Espinoza alleges is a “regressive transfer” approved by Defendant Raemisch.

         Espinoza was transferred to CSP's Management Control Unit on May 8, 2017, because he had “verified custody issues at every level IV [facility] in the state.” Compl. Ex G. On or about May 20, 2017, Espinoza was assaulted by two Sureno gang members. He was seen by CSP medical staff and given an ice pack. Espinoza was then released to Defendants Stitt and Serles who placed restraints on his “bloody” body and placed him in a regular transport van. According to the Complaint, Stitt and Serles also physically and verbally assaulted Espinoza and called him a crybaby. They also forgot to take his medical file, so they had to turn around and go back to the CSP facility, delaying his medical treatment. During the transport, Espinoza lost a significant amount of blood and started having seizures. He was placed in a neck brace and transported by ambulance to Canon City Hospital.

         Following Espinoza's release from the hospital, he was returned to the Management Control Unit at CSP. At some point, perhaps in July of 2017, ^[1] Espinoza was asked whether “he wants to progress to CCTU and he stated yes he wanted to.” Compl. Ex. G. A “CCTU” is a Close Custody Transition Unit for inmates transitioning out of CSP. See id.

         On November 15, 2017, Espinoza was granted a Protective Custody Hearing presided over by Defendants Little, Denwalt, McCall, and other members of the Protective Custody Review Board. Espinoza was denied placement in protective custody. Compl. Ex. C. Thereafter, he was placed in BVCF, a closed custody level IV facility, on November 28, 2017. Compl. Ex. Y.

         II. Procedural History

         In the present motion, Defendants contend that (1) they are immune from suit to the extent they are sued for damages in their official capacities; (2) the individual Defendants are entitled to qualified immunity; (3) Espinoza fails to allege personal participation by Defendants Raemisch, Little, McCall, Denwalt, and Dick; and, (4) Espinoza fails to state plausible claims for relief against Defendants Serles, Stitt, and Jackson.

         Espinoza responds that he, in fact, states plausible Eighth Amendment claims against the Defendants, which were clearly established in the law. Espinoza asserts that not only was the risk of substantial harm “serious” as required for a constitutional claim, but also the Defendants knew of the risk of harm to Espinoza, particularly after he reported threats and was attacked by Surenos gang members in General Population at SCF and CSP.

         Although provided the opportunity to do so, Defendants did not file a reply in support of the motion.

         LEGAL STANDARDS

         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castenada v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (emphasis in original). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Espinoza in this case bears the burden of establishing that this Court has jurisdiction to hear his claims. Further, under a 12(b)(1) motion, “a court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)). In such an instance, “a court's reference to evidence outside the pleadings does not convert the motion into a Rule 56 motion.” Id.

         II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679. ...