United States District Court, D. Colorado
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.
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