United States District Court, D. Colorado
T. Varholak, United States Magistrate Judge.
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.
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.]
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.]
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].
STANDARD OF REVIEW
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).
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
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).
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).
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
Exhaustion of administrative remedies
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