United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendant Donald Gibson's Motion to Dismiss.
ECF 70. Defendant seeks dismissal of Plaintiff Luke
Chrisco's four remaining claims related to
Defendant's alleged use of four-point restraints and
involuntary administration of medication. Defendant argues
these claims are barred by the two-year statute of
limitations for § 1983 claims. For the reasons that
follow, the Court agrees and grants Defendant's motion.
Statement of Facts
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in his Complaint (ECF 5),
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).
times relevant to the remaining claims, Plaintiff was
incarcerated at the San Carlos Correctional Facility
(“SCCF”) in the Colorado Department of
Corrections (“CDOC”). Compl., ECF 5. On July 30,
2015, Plaintiff sprayed water out of his shower onto the
floor of the unit. Id. ¶ 79. SCCF officials
removed him from the shower and placed him in restraints.
Id. ¶ 80. Plaintiff then took ten milligrams of
Zyprexa at the request of SCCF staff. Id.
¶¶ 80-81. Captain Larimore accused Plaintiff of
having “cheeked” his medication. Id.
¶ 82. As a result, a nurse administered an intramuscular
injection of Halidol. Id. ¶ 83. This caused
Plaintiff to suffer radial nerve pain and anxiety.
Id. ¶ 84.
31, 2015, Plaintiff was placed on a mental health watch
(“MHW”) and put in restraints. Id.
¶ 1. When Plaintiff complained that the restraints were
too tight, various nurses and guards drafted false reports
stating that he was being aggressive. Id.
¶¶ 4-5. As a result, Defendants placed Plaintiff on
a table in “four-point restraints” from August 2,
2015 through August 4, 2015. Id. ¶¶ 5-6.
Plaintiff was placed in these restraints pursuant to a CDOC
policy that required staff to review the need for restraints
after four hours, then again every twenty-four hours.
Id. ¶¶ 30-33. However, in practice, SCCF
medical staff assessed inmates only after twenty-four hours.
Id. ¶ 33. Defendant finally removed the
restraints after Plaintiff promised he would stop filing
lawsuits and grievances. Id. ¶ 60.
Plaintiff initiated this case on July 24, 2017 by filing a
document titled “Notice, ” ECF 1,  he did not assert
claims against Defendant Gibson (among other former
Defendants) until he filed his Complaint on August 14, 2017.
Compl., ECF 5. Relevant to the argument raised in the present
motion, Plaintiff deposited his Complaint in the SCCF mail
system on August 8, 2017. Id. at 29. Plaintiff
alleges six causes of action, but only claims three, four,
five, and six, all brought pursuant to 42 U.S.C. § 1983,
pertain to Defendant Gibson. In his third cause of action,
Plaintiff alleges an Eighth Amendment claim against Defendant
for restraining him from July 31, 2015 through August 4,
2015. Id. ¶¶ 51-70. Plaintiff's fourth
claim alleges a First Amendment violation and contends that
Defendant placed him in restraints in retaliation for
lawsuits he filed. Id. ¶¶ 72- 78. Claim
five alleges Defendant violated the Eighth Amendment by
force-medicating Plaintiff on July 30, 2015. Id.
¶¶ 79-88. Plaintiff's sixth claim asserts
Defendant violated the First Amendment by medicating him by
force in retaliation for filing lawsuits. Id.
did not appear in this case (through his counsel) until May
23, 2018, after the filing of the former
Defendants' motion to dismiss Plaintiff's Complaint.
ECF 44. This Court granted the motion on July 27, 2018,
leaving Gibson as the sole remaining Defendant. ECF 53. On
September 26, 2018, Plaintiff filed a “Stipulated
Motion for an Administrative Stay Toward Settlement.”
ECF 54. This motion was granted and a stay imposed on October
5, 2018. ECF 55-57. On February 25, 2019, Defendant filed a
status report advising that the CDOC had rejected
Plaintiff's settlement proposals. ECF 63. On March 21,
2019, the Court ordered Defendant to file an answer or other
response to the Complaint on or before April 4, 2019. ECF 68.
April 4, 2019, Defendant filed the present motion arguing the
applicable two-year statute of limitations bars
Plaintiff's remaining claims. ECF 70. Plaintiff filed a
response to the motion on April 17, 2019 asking the Court to
equitably toll the statute of limitations. Resp., ECF 71.
According to Plaintiff, he was prevented from timely
finishing his complaint “due to being moved to another
prison and deprived of his papers in the process until August
6, 2017.” Id. at 1. Plaintiff asserts this
removal and confiscation of legal materials constituted
exceptional circumstances, which requires equitable tolling.
Defendant replied to Plaintiff's response on May 1, 2019
emphasizing that Plaintiff has failed to meet his burden to
invoke equitable tolling. ECF 72. Defendant states he did not
commit any wrongful conduct preventing Plaintiff from
asserting his claims in a timely manner, nor did exceptional
circumstances prevent Plaintiff from filing the claims.
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.'”
Iqbal, 556 U.S. at 678 (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. ...