United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
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. The
recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
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).
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).
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).
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).
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.
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.
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).
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
lawsuit against the individual Defendants, Plaintiff alleges
violations of his First and Eight Amendment rights,
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.)