Millbrook v. Spitz

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the August 26, 2019, recommendation of Magistrate Judge Kathleen M. Tafoya (ECF No. 64) to deny the individual Defendants’ motion for summary judgment (ECF No. 33) and to grant in part and deny in part the individual Defendants’ motion to dismiss (ECF No. 53). Plaintiff, a federal prisoner proceeding pro se, has filed an objection to the recommendation (ECF No. 67) along with three new motions (ECF Nos. 64, 68, 69). Defendants do not object to the recommendation. They have responded to Plaintiff’s objection but not to his new motions. For the reasons below, the Court overrules Plaintiff’s objection, accepts and adopts the recommendation, denies the motion for summary judgment, grants in part and denies in part the motion to dismiss, and denies two of Plaintiff’s new motions.^[1] The recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         I. LEGAL STANDARDS

         Pursuant to Fed.R.Civ.P. 72(b)(3), this Court reviews de novo any part of the magistrate judge’s recommendation that is properly objected to. An objection is proper only if it is sufficiently specific “to focus the district court’s attention on the factual and legal issues that are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “In the absence of a timely objection, the district court may review a magistrate judge’s report under any standard it deems appropriate.” Summers v. State of Utah, 927 F.3d 1165, 1167 (10th Cir. 1991).

         Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in his favor. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).

         In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the complaint, views those allegations in the light most favorable to the plaintiff, and draws all reasonable inferences in the plaintiff’s favor. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, ” id. at 555, and conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The Court is “not bound to accept as true a legal conclusion couched as a factual allegation, ” Twombly, 550 U.S. at 555 (quotation omitted). Pursuant to 28 U.S.C. § 1915(e)(2)(B), failure to state a claim is a ground for sua sponte dismissal where, as here, the plaintiff is permitted to proceed without payment of an initial partial filing fee. Jones v. Bock, 549 U.S. 199, 214 (2007).

         Plaintiff proceeds pro se, so the Court liberally construes his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         II. BACKGROUND

         Plaintiff is an inmate at the administrative maximum facility in Florence, Colorado. Plaintiff asserts that Defendant Spitz, the assistant warden, took offense to a comment he made and told him “that she was going to teach [him] a lesson.” (ECF No. 16 at 6.) Soon afterward, Defendants Spitz and Murton and four unknown correctional officers came to Plaintiff’s cell to conduct a search. Plaintiff was handcuffed and placed in another cell. He complained that the handcuffs were cutting off blood circulation, but the officers “told [him] to shut [his] mouth” (id. at 7) and refused to loosen them. Plaintiff was left in the cell for twenty to thirty minutes while his cell was searched. Defendant Murton and the four unknown officers then took Plaintiff-still handcuffed-back to his cell, telling him that they would teach him not to mess with Defendant Spitz or any female staff at the prison. Defendant Murton then slammed Plaintiff’s head and right shoulder against the bars and tried to break his arm by pulling up on the handcuffs. Defendant Murton also stuck his finger in Plaintiff’s anus for three to five seconds. Defendant Murton then removed the handcuffs and left. Plaintiff suffered “permanent nerve damage in [his] wrists and fingers” (id. at 11) and injuries to his head, neck, back, and arms as well as other symptoms, including severe headaches and post-traumatic stress disorder.

         Plaintiff reported the incident to Defendants Collins and Cochran, stating that he was in pain and that his anus was bleeding. Defendants Collins and Cochran denied Plaintiff’s requests for medical treatment. When Plaintiff said he would file a grievance against them, Defendant Collins “said that he would kick [Plaintiff’s] ass, ” and Defendant Cochran “said he was going to spray [Plaintiff] with mace” (id. at 13). Various other prison officials also denied Plaintiff’s requests for medical treatment.

         Later, Plaintiff told Defendant Spitz that he would file a grievance or lawsuit against her and other prison officials. She responded that “she was going to have [him] set up to be beat up or killed and to watch [his] back” (id. at 18).

         Weeks later, after Plaintiff filed a lawsuit against the individual Defendants, Defendant Collins threatened Plaintiff that he was “going to get your dumb black ass sooner or later” (id.).

         In his lawsuit against the individual Defendants, Plaintiff alleges violations of his First and Eight Amendment rights, ^[2] seeking relief under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), as well as 18 U.S.C. § 3626 and 42 U.S.C. § 1997e(e). The Court dismissed several of Plaintiff’s claims, leaving only the Eighth Amendment excessive force claims against Defendants Spitz and Murton and the First Amendment retaliation claims against Defendants Spitz, Collins, and Cochran. (ECF No. 17 at 12.) Plaintiff then brought a separate lawsuit against the United States, alleging various tort claims based on the same underlying conduct and seeking relief under the Federal Tort Claims Act (“FTCA”). Because the two cases are based on substantially similar allegations, they have been consolidated. (ECF No. 43.)

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