Sanchez v. Pescador

          ORDER

          Michael E. Hegarty, United States Magistrate Judge

         This 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^[1] 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.”^[2] 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.

         STATEMENT OF FACTS

         The 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 (2009).

         Sanchez's 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.

         Defendants 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.

         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 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.

         Generally, 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.

         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. 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.

         Plausibility 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.

         However, “[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 ...