United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge
action arises out of the incarceration of Plaintiff Chris
Sanchez (“Sanchez”), an inmate at the Buena Vista
Correctional Facility in Colorado (“BVCF”).
Sanchez's Amended Complaint brings three
claims pursuant to 42 U.S.C. § 1983: (1)
Claim One for excessive force in violation of the Eighth
Amendment against Defendants Jones, Pescador, and Arguello;
(2) Claim Two for “cruel punishment” in violation
of the Eighth Amendment against Defendants Jones, Pescador
and Arguello; and (3) Claim Three for deliberate indifference
in violation of the Eighth Amendment against Defendants
Pescador, Arguello, and “Nurse
Samantha.” In response, Defendants Jones, Pescador,
and Arguello (“CDOC Defendants”) filed a motion
to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)
arguing the Court lacks jurisdiction to hear certain claims
and the Plaintiff fails to plausibly state the remaining
claims. For the reasons that follow, the Court will grant in
part and deny in part the CDOC Defendants' motion.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Sanchez in his Amended 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
claims against the CDOC Defendants arise from an incident
that occurred on May 23, 2017, when Sanchez was incarcerated
at Sterling Correctional Facility (“SCF”).
Sanchez alleges that he was being escorted from his cell to
“table time, ” when another prisoner near him
became “unruly.” Sanchez told staff that he
preferred not to proceed with table time; however, the CDOC
Defendants told him he would be seated at the table until the
situation resolved. Defendants proceeded to shackle Sanchez
to the table by his hands and feet; Sanchez was unable to
stand or move and he was “at the epicenter of a
violent, disruptive situation” involving the
“unruly” prisoner. Pescador told Sanchez,
“we're gonna show you how we deal with punks who
act up, ” and Arguello said, “if you don't
like it, tough! But you're gonna watch.” The
Defendants proceeded to assault the unruly prisoner and
forcibly removed him from the area.
had left a pair of handcuffs sitting on the table in front of
Sanchez; Sanchez “grabbed them by sliding them towards
himself.” The Defendants immediately surrounded
Sanchez, and Jones, who drew a taser and pointed it at
Sanchez, said, “put down the cuffs, punk.”
Sanchez was upset at being called a “punk, ”
which in prison means an inmate who is raped and sexually
trafficked by other inmates, and responded, “who the f-
you think you are talkin' to?” Jones fired the
taser at Sanchez and knocked Sanchez from his seat; however,
because of the shackles, Sanchez hung from his wrists and
ankles and did not speak or move. Pescador and Arguello then
unholstered cannisters of OC spray and sprayed Sanchez
directly in the face and eyes, despite the fact that they
knew of a medical order prohibiting them from using OC spray
on or near Sanchez, who suffers from asthma. The spray
entered Sanchez's eyes and, eventually, caused a
“serious” eye infection. Sanchez also began
choking from an inability to breathe, but the Defendants
deprived Sanchez of his rescue inhaler. The Defendants then
struck Sanchez with their knees and closed fists.
Dismissal under Fed.R.Civ.P. 12(b)(1)
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 Butler v. Kempthorne, 532 F.3d 1108,
1110 (10th Cir. 2008) (recognizing federal courts are courts
of limited jurisdiction and “there is a presumption
against our jurisdiction”). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceeding in which it becomes apparent that jurisdiction
is lacking.” Full Life Hospice, LLC v.
Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A motion
to dismiss under Rule 12(b) “admits all well-pleaded
facts in the complaint as distinguished from conclusory
allegations.” Smith v. Plati, 258 F.3d 1167,
1174 (10th Cir. 2001). The burden of establishing subject
matter jurisdiction is on the party asserting jurisdiction.
See Pueblo of Jemez v. United States, 790 F.3d 1143,
1151 (10th Cir. 2015). Accordingly, Sanchez bears the burden
in this case of establishing that this Court has jurisdiction
to hear his claims.
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction take two forms. Holt v. United States,
46 F.3d 1000, 1002 (10th 1995).
First, a facial attack on the complaint's allegations as
to subject matter jurisdiction questions the sufficiency of
the complaint. In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
as true. Second, a party may go beyond allegations contained
in the complaint and challenge the facts upon which subject
matter jurisdiction depends. When reviewing a factual attack
on subject matter jurisdiction, a district court may not
presume the truthfulness of the complaint's factual
allegations. A court has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted); see also
Pueblo of Jemez v. United States, 790 F.3d 1143, 1148
n.4 (10th Cir. 2015). The present motion launches a facial
attack on this Court's subject matter jurisdiction;
therefore, the Court will accept the Amended Complaint's
factual allegations as true for its Rule 12(b)(1) analysis.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to ...