Opinion
Civil Action No. 19-cv-01407-PAB-KLM
06-12-2020
JASON ANTHONY ALSTEENS, Plaintiff, v. ANTHONY PIPER, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant Anthony Piper's ("Defendant" or "Captain Piper") Motion to Dismiss [#15] (the "Motion"). The Court has reviewed the Motion [#15], the Response [#21], the Reply [#24], the Supplemental Reply [#27] (which the Court deems to be a "Surreply"), the case file and the applicable law, and is sufficiently advised in the premises. For the reasons stated below, the Court respectfully RECOMMENDS that the Motion [#15] be GRANTED and the case be DISMISSED.
"[#15]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
Plaintiff did not seek leave to file this Surreply, and D.C.COLO.LCivR 7.1(d) permits only a motion, response, and reply. See Leonard v. Lincoln Cty. Bd. of Comm'rs, 790 F. App'x 891, 895 (10th Cir. 2019) (finding no error in district court's failure to consider a surreply that is not permitted by the local rule). The Court will, however, consider it in the interest of fairness because Plaintiff is a pro se litigant.
I. Introduction
Plaintiff is a pro se litigant and inmate of the Colorado Department of Corrections ("D.O.C."), housed at Crowley County Correctional Facility. Plaintiff's Amended Complaint [#9] asserts a claim pursuant to 42 U.S.C. § 1983 against Defendant in his individual capacity, alleging that Defendant violated Plaintiff's Eighth Amendment rights, specifically the Cruel and Unusual Clause, by failing to protect him from being assaulted by his cellmate. Am. Compl. [#9] at 4. Plaintiff alleges that he was assaulted with a hot pot, suffering several lacerations, and requiring six staples. Id.
Section 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). To show a deprivation of federal rights as a cognizable § 1983 claim, Plaintiff must make specific factual allegations that show Defendant's violation of his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). --------
Defendant's Motion [#15] asserts that Plaintiff fails to state a claim for relief under Rule 12(b)(6) in connection with his Eighth Amendment claim and that Defendant is entitled to qualified immunity. Motion [#15] at 1-2. More specifically, the Motion [#15] avers that Plaintiff's alleged Eighth Amendment violation must be dismissed because "Plaintiff failed to plausibly allege either prong of the deliberate indifference test." Id. at 5. As there is allegedly no constitutional violation, Defendant asserts that qualified immunity applies. Id. at 6-7.
II. Standard of Review
A. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is granted when the plaintiff has failed to state a claim upon which relief can be granted. To survive a motion to dismiss, a complaint must allege enough facts to state a facially plausible claim from which the Court can draw a reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A pleading cannot make "naked assertion[s]" or conclusory statements without sufficient facts to prove alleged conduct. See Twombly, 550 U.S. at 557. At the pleading stage, a claim must contain enough facts that a reasonable expectation can be had that discovery could prove the plaintiff's allegations. Id. at 556. A plausible claim must provide more than just a mere possibility that the defendant acted unlawfully and must show a "reasonable likelihood" that the claim can be supported by facts. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012); Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Factual allegations are accepted as true and construed in the light most favorable to the plaintiff; however, the Court cannot advocate for a pro se litigant. Therefore, the pro se litigant must allege specific facts and state a claim upon which relief can be granted. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In considering a constitutional claim pursuant to § 1983, the "plaintiff must show the defendant personally participated in the alleged violation, and conclusory allegations are not sufficient to state a constitutional violation." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).
B. Qualified Immunity
Qualified immunity applies to public officials acting in their individual capacities. Schalk v. Gallemore, 906 F.2d 491, 499 (10th Cir. 1990). When a defendant raises a Rule 12(b)(6) motion to dismiss based on qualified immunity, the burden shifts to the plaintiff to show that qualified immunity is inappropriate. Davis v. Scherer, 468 U.S. 183, 197 (1984); DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). The plaintiff must show that (1) there was a violation of a constitutional right and that (2) the right at issue was clearly established. Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013). Qualified immunity is granted to the defendant if the plaintiff fails to satisfy either prong of the qualified immunity test. Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
Qualified immunity thus protects government officers from liability for civil damages if "their conduct does not violate clearly established . . . constitutional rights of which a reasonable officer would have known." Raguindin v. Yates, No. 15-cv-00635-CMA-KLM, 2016 WL 1253625, at *4 (D. Colo. Mar. 31, 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The qualified immunity inquiry asks "whether the law puts officials on fair notice that the described conduct was unconstitutional," Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010), and this inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 201 (2001). For a federal official to be on fair notice of clearly established law, there must be a Supreme Court or Tenth Circuit decision establishing the law that the plaintiff maintains.
III. Analysis
A. The Merits of the Eighth Amendment Claim
Defendant claims that he is entitled to qualified immunity as a prison official because Plaintiff has failed to satisfy the first prong of the qualified immunity test, i.e., violation of a constitutional right under the Eighth Amendment. Motion [#15] at 6-7. The Court agrees with Defendant that Plaintiff has failed to state a plausible Eighth Amendment claim and that qualified immunity is appropriate, as discussed below.
The Eighth Amendment provides protection against cruel and unusual punishment and imposes a duty on prison officials to provide reasonable protection from serious bodily harm. Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). To successfully state a claim for an Eighth Amendment violation, the plaintiff must satisfy both prongs of the two-pronged deliberate indifference test: (1) objectively, the harm the plaintiff alleges must be sufficiently serious to receive constitutional protection; and (2) subjectively, the defendant must be aware of a substantial risk of harm to plaintiff's health or safety and disregard that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). "The deliberate indifference test lies somewhere between the poles of negligence at one end and purpose or knowledge at the other," and has been "routinely equated with recklessness." Farmer v. Brennan, 511 U.S. 825, 836-37 (1994).
To evaluate the objective prong, the Court looks to the defendant's conduct and whether it "result[ed] in the denial of 'the minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834. "To establish a cognizable Eighth Amendment claim for failure to protect an inmate from harm by other inmates, the plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm. Syzmanski v. Benton, 289 F. App'x 315, 318 (10th Cir. 2008). Qualifying conduct occurs where "prison officials disregard repeated warnings of danger to a particular prisoner and continually refuse to make the situation safer." Grimsley v. MacKay, 93 F.3d 676, 681 (10th Cir. 1996).
Under the subjective prong, the Plaintiff must show that the defendant (1) knew of a substantial risk of serious harm posed to the plaintiff and (2) disregarded that risk "by failing to take reasonable steps to abate the risk." Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The plaintiff must show more than negligence, meaning the plaintiff cannot rely solely on an allegation that the defendant should have perceived a substantial risk. Farmer, 511 U.S. at 838; Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). The plaintiff must instead show that the defendant was aware of a specific and substantial risk of harm, and deliberately failed to act with a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834-35; Wright v. Collison, 651 F. App'x 745, 748 (10th Cir. 2016). "If the official was unaware of the risk, 'no matter how obvious the risk or how gross his negligence in failing to perceive it,' his failure to alleviate it 'is not an infliction of punishment and therefore not a constitutional violation.'" Szymanski, 289 F. App'x at 318 (quoting Tafoya, 516 F.3d at 916). Further, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844.
In the case at hand, the Court questions whether Plaintiff has met the objective prong, but finds that even if he did, Plaintiff has not sufficiently alleged facts to support the subjective prong. Plaintiff's Amended Complaint [#9] alleges that the cellmate who assaulted him was involved in two prior altercations with other inmates. Id. Plaintiff has not alleged that he had any altercations with his cellmate, or that he had reason to fear his cellmate in any way. Id. Plaintiff also does not allege that he told prison officials of any threat or risk of harm that he perceived from his cellmate. There are thus no allegations from which the Court can infer that prison officials disregarded repeated warnings of danger to the Plaintiff. Grimsley, 93 F.3d at 681. Moreover, while Plaintiff avers that the cellmate declared a "mental health emergency" from being harassed by other inmates, Plaintiff does not explain how that alleged "emergency" put him in danger from the inmate. See Am. Compl. [#9], at 4. In fact, Plaintiff alleges that his cellmate declared the mental health emergency in order to be removed from the cell and that he was then taken to segregation (which removed him from Plaintiff's presence). Id. These allegations do not show that Defendant had any notice of a risk of danger posed to Plaintiff by his cellmate.
Plaintiff alleges, however, that his cellmate was returned to the cell in a restraint chair. Am. Compl. [#9], at 4. According to Plaintiff, a restraint chair is a device used by Colorado correctional facilities to "handle violent inmates," and the use of the chair is "limited to [ ] situations when it is apparent that the inmate presents a real [and] immediate threat to the safety [and] security of the inmate or others." Id. Plaintiff alleges that Defendant's authorization for the cellmate to be brought back into the cell in a restraint chair, after his temporary removal, indicates that Defendant's actions were deliberately indifferent to the safety of Plaintiff and the other cellmates. Id.
Even accepting Plaintiff's allegations as true, the restraint chair should actually have alleviated danger from the cellmate since, according to Plaintiff, the purpose of the restraint chair is to protect the cellmate from harming himself or others. Am. Compl. [#9] at 4. There are no allegations that the officers knew or should have known that even in a restraint chair, the cellmate might be a threat to Plaintiff and create a serious risk of harm. Further, given the fact that the cellmate had "declare[d] a mental health emergency" before being put into the chair, the logical inference is that the officers put the cellmate into the restraint chair because of this, not because of any concern that the cellmate posed a serious risk of harm to others. In short, there are no allegations that show a deliberate disregard of Plaintiff's safety and well-being by Defendant, either through prior knowledge that the cellmate posed a risk to Plaintiff or through a purposeful disregard of any perceived risk. See Leonard v. Lincoln Cty. Bd. of Comm'rs., 790 F. App'x 891, 894-95 (10th Cir. 2019) (prisoner's allegations did not satisfy the deliberate indifference test because the plaintiff did not demonstrate that the defendants had any reason or basis to know of an excessive risk to the plaintiff by an inmate who assaulted him).
Additionally, Plaintiff has not shown that Defendant actually participated in any of the events leading up to the alleged assault. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). For a supervisor such as Defendant Captain Piper to be liable for an Eighth Amendment claim, Plaintiff must show that "an 'affirmative link' exists between the [constitutional] deprivation and either the supervisor's 'personal participation, his exercise of control or direction, or his failure to supervise.'" Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (quoting Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)). "[P]ersonal participation is an essential allegation in a § 1983 claim." Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996).
Plaintiff's Amended Complaint [#9] does not allege that Captain Piper personally participated in the events surrounding the alleged Eighth Amendment violation. Id. at 4. As to supervisory liability, Plaintiff alleges that it is Captain Piper's "responsibility and duty by D.O.C. policy to ensure the protection, welfare, and safety" of the prisoners. Id. This conclusory allegation does not establish supervisory liability. See Wilson v. Romero, No. 16-cv-02060-CMA, 2018 WL 899256, at *9 (D. Colo. Feb. 15, 2018) ("Conclusory allegations that Defendants were responsible in 'enacting policies and practices ensuring a duty by officer to protect inmates themselves and maintain institutional security' are insufficient" to establish a claim of supervisory liability.); see also Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1154 (10th Cir. 2006) ("something more than conjectural allegations are necessary to establish direct participation by an official in the chain of command").
The allegations that Plaintiff was assaulted in front of Captain Piper (Amended Complaint [#9], at 4) are also not sufficient to show personal participation, as Plaintiff does not allege that Captain Piper failed to intervene or otherwise acted with deliberate indifference at that juncture. The only allegations that could be deemed to suggest personal participation are that the officers told Plaintiff's cellmate that they were going to call Captain Piper to find out what to do before the cellmate was initially removed from the cell, and that Captain Piper "authorized" use of the restraint chair. Id. However, Plaintiff makes no allegations which show that an "affirmative link" exists between the alleged constitutional deprivation (not protecting Plaintiff from the assault) and Captain Piper's authorization of use of the restraint chair. See Serna, 455 F.3d at 1152. As discussed previously, Plaintiff alleged that the purpose of the restraint chair was to protect the cellmate from harming himself or others. Thus, authorization of the chair under the D.O.C. policy would have been justified to ensure the cellmate and inmates around him were safe. Plaintiff does not explain how authorization of a restraint chair which is meant to protect the restrained inmate from others contributed to or is affirmatively linked to the alleged constitutional violation.
Because Plaintiff has failed to satisfy the subjective prong of the deliberate indifference test and has failed to show personal participation by Defendant, he has failed to show a violation of the Eighth Amendment. See Koerner, 707 F.3d at 1188. Accordingly, Defendant is entitled to qualified immunity. See Gross, 245 F.3d at 1156. The Court therefore recommends that the Motion [#15] be granted.
B. Dismissal or Leave to Amend
In light of the recommendation to grant the Motion [#15], the Court next addresses whether the case should be dismissed or whether Plaintiff should be granted leave to amend the complaint. While Plaintiff has not requested leave to amend, the Court notes that leave to amend a complaint should be granted by the court "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend may be denied, however, when the moving party fails "to cure deficiencies by amendments previously allowed . . . ." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Even pro se litigants do not have unlimited chances to amend, and they must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Bertolo v. Raemisch, No. 17-cv-00773-RM-KLM, 2020 WL 132764, at *4, (D. Colo. Jan. 13, 2020).
The Court recommends, based on the above authority, that leave to amend not be granted in this case, and that the case be dismissed. Plaintiff has already had an opportunity to amend his initial Complaint [#1] to cure the very deficiencies that were raised in the Motion [#15]. Thus, after Plaintiff filed his initial Complaint [#1], he received an Order Directing Plaintiff to File Amended Complaint. [#7], at 1. That Order stated that the Complaint [#1] was "deficient because Plaintiff fails to allege specific facts that demonstrate Defendant violated his Eighth Amendment rights. Instead, he alleges only that Defendant was present when he was assaulted by his cellmate," which "does not demonstrate Captain Piper was deliberately indifferent to a substantial risk of serious harm." Id. at 1-2. Plaintiff was instructed as to the deliberate indifference standard under the Eighth Amendment, and was told to cure the deficiencies by "identify[ing] the specific factual allegations that support and claim what Defendant did or failed to do that allegedly violated his rights." Id. at 3-4. Plaintiff's Amended Complaint [#9] failed to cure the deficiencies noted by the Court as discussed in this Recommendation. Accordingly, the Court recommends that no further leave to amend be given and that the case be dismissed.
IV. Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motion [#15] be GRANTED and the case DISMISSED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: June 12, 2020
BY THE COURT:
/s/
Kristen L Mix
United States Magistrate Judge