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Abdo v. United States

United States District Court, D. Colorado

December 11, 2019

NASER ABDO, Plaintiff,
UNITED STATES, A. BALSICK ind. cap, J. CRAIG ind. cap, J. MUNOZ ind. cap, STARIKA ind. cap, FERNANDEZ Lt., ind. cap, MELVIN Lt., ind. cap, LEVI WILLIAMS nurse, ind. cap, I. JOHNSTON, Defendants.


          Kathleen M. Tafoya Magistrate Judge

         Before the court is Defendants' “Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6), ” and Plaintiff's “Motion for Injunction.” ([“Defendants' Motion”], Doc. No. 143; [“Plaintiff's Motion”], Doc. No. 166.) Plaintiff has responded in opposition to Defendants' motion, and Defendants have replied. ([“Plaintiff's Response”], Doc. No. 170; [“Defendants' Reply”], Doc. No. 182.) The United States has, likewise, responded in opposition to Plaintiff's motion, and Plaintiff has replied. ([“Defendant's Response”], Doc. No. 179; [“Plaintiff's Reply”], Doc. No. 186.)


         Pro se Plaintiff Naser Abdo, an inmate at the United States Penitentiary, Administrative Maximum [“ADX”] facility in Florence, Colorado, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act [“FTCA”], 28 U.S.C. §§ 2671-2680, asserting violations of his civil rights by the United States and eight individual Defendants, all of whom are ADX employees. ([“Complaint”], Doc. No. 126 at 2-4.)

         I. Food Slot Incident - Defendants Balsick, Craig, and Starika

         On December 9, 2016, Plaintiff, a practicing Muslim, was said to be housed in a cell in the ADX medical unit, due to health complications from his ongoing hunger strike. (Id. at 5 ¶ 2.) At that time, Defendant Fernandez reportedly promised to return Plaintiff's “confiscated religious property, ” if he submitted to a medical assessment. (Id. at 5 ¶ 3.) Plaintiff alleges that he complied with the request, but that Defendant Fernandez “never fulfilled his promise.” (Id. at 5 ¶¶ 3-4.)

         According to the Fourth Amended Prisoner Complaint, shortly thereafter, Plaintiff put his arm through his cell's food slot, and demanded that Defendants Balsick, Craig, and Starika return his religious property from Defendant Fernandez. (Id. at 5 ¶ 4.) Defendants Balsick, Craig, and Starika reportedly responded that they would “try” to get the requested items, on the condition that Plaintiff remove his arm from the food slot. (Id. at 5 ¶ 5.) Plaintiff, however, refused to comply with the order, purportedly because Defendants “were lying only to relieve themselves of any short term [sic] problem.” (Id.)

         It is alleged that, over the next few minutes, Defendants Balsick and Craig “became increasingly angry and vengeful” toward Plaintiff, as they “began to insult and threaten” him with various taunts pertaining to his criminal history. (Id. at 6 ¶ 7.) Defendant Balsick reportedly warned Plaintiff, “[I]f you don't pull your arm back we are going to gas your fu**ing ass.” (Id. at 6 ¶ 8.) Plaintiff, once again, refused to comply with the order, and instead, placed his left leg into the food slot to “prevent any direct gassing” to his face. (Id. at 6 ¶ 9.) It is alleged that Defendant Balsick then “nod[ded]” to Defendant Craig and “grab[bed]” Plaintiff's leg, as Defendant Craig “gasse[d] [Plaintiff's] cell through the slot for 8 seconds.” (Id. at 6-7 ¶¶ 9-11.) Plaintiff alleges that Defendant Craig then “slam[med]” his leg “against protruding metal locking mechanisms on the doors outer surface which evokes a cry of pain.” (Id. at 7 ¶ 11.)

         Plaintiff, at that point, reportedly agreed to remove his leg from the slot, but Defendants Balsick and Craig, nevertheless, “continued to hurt” him. (Id. at 7 ¶ 12.) Plaintiff alleges, specifically, that Defendant Craig “forcefully straightened” his leg until it was “fully extended.” (Id. at 7 ¶ 13.) Plaintiff further alleges that Defendant Balsick “seized this opportunity to punch [his] left groin area with full force 20 times, striking [his] testicles and inner left thigh.” (Id. at 7 ¶ 14.) In addition, Plaintiff alleges that Defendant Starika, at Defendant Craig's command, “hit” him with a baton “once or twice” on his left shin. (Id. at 8 ¶ 15.)

         II. Blanket Incident - Defendants Fernandez, Melvin, and Williams

         For the next twelve to fourteen hours, Plaintiff was reportedly shackled in full body restraints and monitored by Defendant Melvin. (Id. at 8-9 ¶¶ 19-20.) Plaintiff states that, throughout that time, he “repeatedly” told Defendant Melvin that he “refuse[d] to come out of restraints, ” unless he could speak to the Special Investigation Service “about being assaulted.” (Id. at 9 ¶¶ 20-21.)

         Shortly thereafter, on December 10, 2016, at 7:30 AM, Defendants Fernandez and Williams, along with two subordinate ADX guards, entered Plaintiff's cell to perform a restraint check. (Id. at 9 ¶ 22.) According to Plaintiff, Defendant Fernandez “ordered” him “very disrespectfully” to hand over his blanket, and for that reason, he “took [his] time” to comply. (Id.) Plaintiff alleges that Defendant Fernandez then “stormed” into his cell, “threw” his blanket, and ordered the two subordinate guards to remove his restraints. (Id. at 9 ¶¶ 22-23.) After Plaintiff refused to “com[e] out of restraints, ” the two subordinate guards reportedly “slammed” him against the wall and the bed. (Id. at 9-10 ¶ 24.) Plaintiff claims that Defendant Fernandez then “pulled out his gas canister, ” and “emptied it into [his] face for five seconds until there was no more gas left.” (Id. at 10 ¶ 26.) Defendant Williams, a prison nurse, was said to be “at the cell door observing the whole interaction.” (Id. at 10 ¶ 27.)

         Plaintiff complains that, immediately following this incident, he was “completely blind and tearing uncontrollably” for three and a half hours. (Id. at 10 ¶ 28.) Although Plaintiff was eventually “escorted to the shower, ” he alleges that Defendants prevented him from effectively “decontaminating” his face. (Id. at 11 ¶ 30.) Plaintiff further alleges that, upon returning to his cell, Defendant Fernandez began to “four-point” him.[1] (Id. at 11-12 ¶¶ 33-34.) Shortly thereafter, Plaintiff reportedly “began to writhe frantically in pain due to the gas burning effects all over [his] body and [his] inability to breathe.” (Id. at 12 ¶ 35.) Plaintiff alleges that he “kept begging” Defendants Fernandez, Melvin, and Williams to “decontaminate” him, because he could not see or breathe. (Id.) According to the Fourth Amended Prisoner Complaint, Defendant Williams eventually conducted a “post use of force medical assessment, ” and “[e]ither he or someone else wiped [Plaintiff's] eyes one time with [Plaintiff's] own shirt.” (Id. at 12-13 ¶¶ 36-37.) Two hours later, Defendants Melvin and Williams returned to Plaintiff's cell to perform a restraint check, at which time Plaintiff once again “pleaded for decontamination, ” but to no avail. (Id. at 13 ¶ 40.)

         III. Razor Incident and Alleged Waterboarding - Defendants Johnston and Munoz

         On July 5, 2017, Plaintiff refused to give his razor to Defendant Munoz, reportedly because Defendant Munoz had previously “verbally harassed” him, “insulted” his religion, and “usurped” his law library access. (Id. at 14 ¶ 43.) Defendant Munoz thereafter entered Plaintiff's cell to retrieve the razor, by himself, which was allegedly “in violation of normal ADX policy and practice requireing [sic] at least two officers to enter a cell whenever one is required to do so.” (Id. at 14 ¶ 44.) Plaintiff alleges that he “tried to explain the issue, ” but that Defendant Munoz, nevertheless, “took out his gas and held it for 8 seconds or so in his hand before emptying it in [Plaintiff's] unsuspecting face.” (Id. at 15 ¶ 46.) Defendant Johnston, who was standing nearby, reportedly “didn't seem surprised, ” as he “calmly” pressed an alarm button for backup. (Id.)

         Plaintiff alleges that he was then “put in full ambulatory restraints, ” and “dragged painfully by the restraints to a large kitchen sink, ” where his “head was forced under a running faucet upside down.” (Id. at 15 ¶ 48.) He claims that the ADX guards “continued to hold [his]

         head under the water” for approximately forty-five seconds. (Id. at 16 ¶ 49.) Plaintiff is adamant that he “knew that this is what waterboarding was.” (Id.)

         IV. Procedural History

         Based on these allegations, on June 27, 2018, Plaintiff commenced this lawsuit against the United States and the individual ADX corrections officers, asserting a bevy of claims. (Doc. No. 1.) In his Fourth Amended Prisoner Complaint, Plaintiff lodges the following causes of action: (1) FTCA claims for battery and negligence by the United States; (2) Eighth Amendment claims for excessive force by Defendants Balsick, Craig, Fernandez, Munoz, and Starika, in their individual capacities; (3) Eighth Amendment claims for deliberate indifference by Defendants Fernandez, Melvin, and Williams, in their individual capacities; and (4) an Eighth Amendment claim for failure to intervene by Defendant Johnston, in his individual capacity. (Compl. 18-30 ¶¶ 55-97.) As relief, Plaintiff seeks monetary damages only. (Id. at 33.)

         Defendants now move to dismiss all claims against them, under Federal Rules of Civil 12(b)(1) and 12(b)(6). (Defs.' Mot. 1.) Specifically, the individual Defendants seek dismissal of the Eighth Amendment claims asserted against them, contending that there is no Bivens remedy for Plaintiff's alleged injuries, or in the alternative, that they are entitled to qualified immunity from those claims. (Id. at 6-14, 19-28, 37-39.) The United States, for its part, moves to dismiss the FTCA claims lodged against it, based on a purported lack of subject matter jurisdiction, and for failure to plausibly allege an intent to cause harm. (Id. at 14-17, 28-31, 39-40.) In addition, the United States argues that certain of the FTCA claims for negligence are barred by the discretionary function exception to the FTCA's limited waiver of sovereign immunity, and by Plaintiff's failure to file a Colorado certificate of expert review. (Id. at 29-34.)


         A. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         B. Federal Rule of Civil Procedure 12(b)(1)

         Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for a lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. 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). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Id. at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).

         A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If a party challenges the facts upon which subject matter jurisdiction depends, a court may not presume the truthfulness of the complaint's “factual allegations . . . [and it] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.

         C. Federal Rule of Civil Procedure 12(b)(6)

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. ...

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