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Wright v. Gess

United States District Court, D. Colorado

September 18, 2019



          Scott T. Varholak, United States Magistrate Judge.

         This matter comes before the Court on Sergeant Robert J. Gess’ Motion to Dismiss [#46] (the “Motion”). The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [##48, 49] This Court has carefully considered the Motion and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Motion is DENIED.

         I. BACKGROUND[1]

         On September 25, 2018, Plaintiff was a Colorado Department of Corrections (“CDOC”) inmate housed at the Denver Women’s Correctional Facility (“DWCF”). [#16 at 14] On that date, Correctional Officer Elias Lopez reported to Sergeant Shirley Dockery that Plaintiff was “talking shit.” [Id.] Sergeant Dockery confronted Plaintiff about the allegation and Plaintiff asked to speak to Sergeant Dockery’s supervisor. [Id.] In response, Sergeant Dockery unholstered her taser, waived the taser around, and told Plaintiff that she could not speak to a lieutenant or a captain. [Id.]

         Meanwhile, Sergeant Robert J. Gess asked Plaintiff to comply with being handcuffed so that he could transport her to speak with Sergeant Dockery’s supervisor. [Id. at 15] Sergeant Dockery told Sergeant Gess that Plaintiff was not going to speak to a lieutenant or captain and ordered Sergeant Gess to discontinue the escort. [Id.] As Sergeant Gess was attempting to maneuver Plaintiff, Plaintiff began to fall. [Id.] Sergeant Gess then “threw Plaintiff [the] remainder of [the] way onto [the] concrete floor.” [Id.] As a result, Plaintiff sustained two lacerations. [Id.] She needed to be transported to the emergency room at Denver Health where her lacerations required a total of ten stitches. [Id.]

         On December 26, 2018, Plaintiff, proceeding pro se, initiated the instant action. [#1] On March 18, 2019, Plaintiff filed her Amended Complaint. [#16] The Amended Complaint brought several causes of action against numerous defendants. [Id.] On March 29, 2019, Senior United States District Judge Lewis T. Babcock dismissed all of Plaintiff’s claims except for an excessive force claim against Sergeant Gess. [#17] On June 27, 2019, Sergeant Gess moved to dismiss that sole remaining claim. [#46] Plaintiff responded to the Motion [#53], Sergeant Gess replied [#59], and Plaintiff filed a surreply [#68].


         Sergeant Gess moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [See generally #46] Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda 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).

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “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 Twombly, 550 U.S. at 570). 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.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         “A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ANALYSIS

         Sergeant Gess advances three arguments in support of his Motion. First, he argues that Plaintiff has failed to exhaust her administrative remedies. [#46 at 4-9] Second, he contends that the Amended Complaint fails to state a claim upon which relief can be granted. [Id. at 9-14] Finally, he claims that he is entitled to qualified immunity. [Id. at 15-16] The Court addresses each argument below.

         A. Exhaustion of administrative remedies

         The Prison Litigation Reform Act (“PLRA”) directs that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856 (2016); Porter v. Nussle, 534 U.S. 516, 524 (2002). But, while the PLRA requires exhaustion of remedies, it only requires exhaustion of “available” remedies. Ross, 136 S.Ct. at 1858-60; Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). An administrative procedure is unavailable when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S.Ct. at 1859. Similarly, “an administrative scheme might be so opaque that it becomes, ...

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