Opinion
Civil Action 20-cv-01596-RM-KMT
08-27-2021
MR. HARRIS CHARLES JR., Plaintiff, v. DEPUTY MCCONNELL, and OTHER UNKNOWN OFFICIAL DEPUTIES, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya, United States Magistrate Judge
Before the court are two motions: (1) “Defendant Deputy Sheriff McConnell's Motion to Dismiss;” and (2) Plaintiff's “Motion Requesting a Change of Venue.” ([“Defendant's Motion”], Doc. No. 24; [“Plaintiff's Motion”], Doc. No. 43.) No. response has been filed to either motion, and the time to do so has lapsed.
Nearly six months after the deadline to respond to the motion to dismiss had passed, on May 21, 2021, Plaintiff sought the court's permission to file an untimely response. (Doc. No. 48.) However, given that Plaintiff failed to show either good cause or excusable neglect, as is required by Federal Rule of Civil Procedure 6(b), his request to do so was denied. (Doc. No. 52.)
STATEMENT OF THE CASE
Pro se Plaintiff Charles Harris, Jr. [“Mr. Harris, ” or “Plaintiff”], a pretrial detainee at the Arapahoe County Detention Facility [“ACDF”], brings this lawsuit, under 42 U.S.C. § 1983, asserting violations of his constitutional rights by an ACDF employee, Defendant Deputy McConnell [“Deputy McConnell, ” or “Defendant”]. ([“Complaint”], Doc. No. 13.) Mr. Harris alleges that, on an unspecified date, while he was in ACDF custody, Deputy McConnell, as well as “other official Deputies that are in a video, ” used “unnecessary excessive force” against him, merely “because it was cold, [and Mr. Harris] was asking to be moved to another cell.” (Id. at 4.) Plaintiff complains that he was “handcuff[ed], ” “taser[ed], ” “put in a chokehold, ” “slammed to the ground headfirst, ” and otherwise “assaulted.” (Id.) Mr. Harris alleges resulting injuries from the use-of-force incident, including an unspecified “medical disorder, ” as well as “prominent scarring” and “ongoing pain.” (Id.)
Based on these allegations, on June 3, 2020, Mr. Harris commenced this lawsuit. (Doc. No. 1.) On September 30, 2020, Mr. Harris filed an Amended Prisoner Complaint, asserting an excessive force claim against Deputy McConnell, in his individual capacity, only. (Compl. 2, 4.) As relief, Plaintiff requests monetary damages, in excess of $5.5 million. (Id. at 6.)
Deputy McConnell now moves to dismiss the Amended Prisoner Complaint, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that he is entitled to qualified immunity with respect to any and all claims against him. (Def.'s Mot. 5-12.) In addition, Deputy McConnell argues that Mr. Harris's allegations, as set forth in his Amended Prisoner Complaint, fail to provide him with adequate notice of what he, specifically, is alleged to have done. (Id. at 4-5.)
STANDARDS OF REVIEW
I. Legal Standard for 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).
II. 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 Rule 12(b)(6) 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, ” i.e., those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 679.
That being said, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court typically may not look beyond the pleadings. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). “If, on a motion under Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020) (quoting Fed.R.Civ.P. 12(d)) (alterations omitted). “Pleadings, ” for purposes of a Rule 12(b)(6) motion to dismiss, however, include attachments to the complaint, documents incorporated into the complaint by reference, and information subject to judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). Documents attached to a motion to dismiss are considered part of the pleadings, if they are referred to in the complaint, central to the plaintiff's claims, and not challenged as inauthentic. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997); accord Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013).
Here, Deputy McConnell has submitted jail surveillance video footage, purportedly showing the use-of-force incident at issue. (Doc. No. 25.) In the motion to dismiss, Deputy McConnell relies on the video footage to argue that his use of force against Mr. Harris was objectively reasonable, and by extension, that he is entitled to qualified immunity. (Def.'s Mot. 2-3.) Deputy McConnell argues that the video footage should be considered by the court, in connection with the motion to dismiss, because Mr. Harris “references a video of the incident” in his operative pleading. (Id. at 3-4.)
Upon careful review of the Amended Prisoner Complaint, the court finds four instances in which Mr. Harris references video footage: (1) “Defendant 2: ‘John Doe' Unknown Officer: Arapahoe County Detention Centennial CO, P.O. Box 4918, are in video ;” (2) “Defendant 3: Other Deputy are in video unknown [sic];” (3) “Officer McConnell, and other official Deputies that are in a video unknown official: [sic] Did use unnecessary excessive force;” and (4) “I'm asking for [an] investigator, or [to] speak with [an] attorney in this matter, due to unknown official Deputies that are in video , leave to proceed under 1915 accordingly.” (Compl. 3-4) (emphasis added.) Notably, Mr. Harris does not rely on the video footage to support his claim against Deputy McConnell, and whether such video footage exists does not appear to be “central to” Mr. Harris's claim. GFF Corp., 130 F.3d at 1384-85. The court, therefore, declines to review or consider the video footage in its evaluation of Defendant's motion to dismiss. See Rustgi v. Reams, __ F.Supp.3d __, 2021 WL 1698142, at *4 (D. Colo. 2021) (declining to consider jail surveillance video footage in connection with a Rule 12(b)(6) motion to dismiss, even though the plaintiff embedded screenshots of the footage into his complaint, on the grounds that the consideration of such evidence would be “inappropriate for a proper Rule 12 sufficiency of the pleading analysis”).
Deputy McConnell urges the court to consider the video footage, to the extent that it directly contradicts Mr. Harris's allegations. (Def.'s Mot. 3-4 (citing Estate of Ronquillo v. City & Cnty. of Denver, 720 Fed.Appx. 434, 437 (10th Cir. 2017)).) To do so, however, the court would be obligated to convert the motion to dismiss into a motion for summary judgment. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (holding that the district court erred, by relying on the defendants' version of events, as set forth in their attached exhibits, to resolve a Rule 12(b)(6) motion). The court, in its discretion, declines to convert the motion to dismiss into a motion for summary judgment. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (“[C]ourts have broad discretion in determining whether or not to accept materials beyond the pleadings.”).
III. Qualified Immunity
“Qualified immunity is an affirmative defense to a section 1983 action, providing immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)). “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Ullery v. Bradley, 949 F.3d 1282, 1289 (10th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Once a defendant has asserted a qualified immunity defense, the burden shifts to the plaintiff to establish that: (1) the defendant violated a constitutional right; and (2) the right was “clearly established” at the time of the defendant's alleged misconduct. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (quoting Perea v. Baca, 817 F.3d 1198, 1202 (10th Cir. 2016)). “[I]f the plaintiff fails to establish either prong of the two-pronged qualified-immunity standard, the defendant prevails on the defense.” A.M. v. Holmes, 830 F.3d 1123, 1134-35 (10th Cir. 2016); Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (“[T]he record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.”) (internal quotation marks omitted).
“Although qualified immunity defenses are typically resolved at the summary judgment stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). “Asserting a qualified immunity defense via a Rule 12(b)(6) motion, however, subjects the defendant to a more challenging standard of review than would apply on summary judgment.” Id. (quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)); see Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (“At [the motion to dismiss] stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.”) (internal quotation marks omitted) (emphasis in original). “In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of [the] defendant's alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (quoting Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)) (internal quotation marks omitted). The court has “discretion to decide which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Brown, 662 F.3d at 1164 (quoting Pearson, 555 U.S. at 236) (alterations omitted).
ANALYSIS
I. Whether Deputy McConnell is Entitled to Qualified Immunity
The Complaint alleges that Deputy McConnell, together with “other official Deputies, ” used “unnecessary excessive force, handcuff, taser, put in chokehold[, ] slammed to the ground, head first, assault [sic].” Deputy McConnell moves to dismiss this claim, on the basis that he is entitled to qualified immunity. (Def.'s Mot. 5-12.)
A. Whether Deputy McConnell Violated Mr. Harris's Constitutional Rights
Because Deputy McConnell has invoked qualified immunity, the court considers, first, whether Mr. Harris has alleged adequate facts from which to infer that Deputy McConnell violated his constitutional rights. Brown, 662 F.3d at 1164. In evaluating whether Plaintiff has plausibly alleged a claim for excessive force, the court “must first ‘isolate the precise constitutional violation with which [Deputy McConnell] is charged' because ‘the choice of amendment matters.'” Estate of Booker v. Gomez, 745 F.3d 405, 418-19 (10th Cir. 2014) (quoting Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010)) (alteration omitted).
“Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment, depending on where the plaintiff finds himself in the criminal justice system at the time of the challenged use of force.” Bond v. City of Tahlequah, Okla., 981 F.3d 808, 815 (10th Cir. 2020) (quoting McCowan v. Morales, 945 F.3d 1276, 1282-83 (10th Cir. 2019)); accord Estate of Booker, 745 F.3d at 418-19 (explaining that each constitutional amendment “carries with it a very different legal test” for analyzing excessive force claims). “Any force used ‘leading up to and including arrest' may be actionable under the Fourth Amendment's prohibition against unreasonable seizures.” Estate of Booker, 745 F.3d at 419 (quoting Porro, 624 F.3d at 1325-26). The Eighth Amendment, by contrast, applies to “prisoners already convicted of a crime who claim that their punishments involve excessive force[.]” Id. (quoting Porro, 624 F.3d at 1325-26). And, where neither the Fourth nor Eighth Amendment applies, courts “turn to the due process clauses of the Fifth or Fourteenth Amendment and their protection against arbitrary governmental action by federal or state authorities.” Id. (quoting Porro, 624 F.3d at 1326).
In this case, the excessive force is alleged to have occurred while Mr. Harris was being held in pretrial detention at ACDF. (Compl. 2.) As a pretrial detainee, Plaintiff's protections against excessive force emanate from the Due Process Clause of the Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”); Rowell v. Bd. of Cnty. Comm'rs of Muskogee Cnty., Okla., 978 F.3d 1165, 1171 (10th Cir. 2020) (assessing a pretrial detainee's claim of excessive force under the Fourteenth Amendment).
“An excessive force claim under the Fourteenth Amendment targets arbitrary governmental action, taken without due process.” Estate of Booker, 745 F.3d at 423 (quoting Porro, 624 F.3d at 1326); see U.S. Const. amend. XIV (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”); accord Lewis, 523 U.S. at 847. To succeed on such a claim, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015); see also Strain v. Regalado, 977 F.3d 984, 991 (10th Cir. 2020) (explaining that “pretrial detainees should receive greater protection against excessive force than convicted inmates because the government lacks the same legitimate penological interest in punishing those not yet convicted of a crime”). “[O]bjective reasonableness turns on the facts and circumstances of each particular case, ” and appropriate considerations include: “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397 (internal quotation omitted). Special consideration must also be given to the “legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)) (alterations and internal quotation marks omitted).
Here, Mr. Harris has failed to provide sufficient factual allegations with which to assess the objective reasonableness of Deputy McConnell's conduct. Plaintiff alleges that Defendant used “unnecessary excessive force” against him, merely because “it was cold” and Plaintiff “was asking to be moved to another cell.” (Compl. 4.) However, Plaintiff provides no context for these allegations, such as when, or where within AVDF, this incident occurred, who was there, or the precise sequence of events that purportedly transpired. See Kemmerly v. Hill, 814 Fed.Appx. 378, 384 (10th Cir. 2020) (affirming the dismissal of a detainee's excessive force claim, where the detainee “bald[ly]” alleged that he was “assaulted and battered on March 20, 2019[, ] and April 22, 2019, ” but failed to provide “any facts in support of these allegations); see also VanZandt v. Okla. Dep't of Human Servs., 276 Fed.Appx. 843, 848-49 (10th Cir. 2008) (observing that the United States Supreme Court, in addressing the Rule 8(a) pleading standard, is particularly “critical of complaints that do not mention specific times, places or people involved”). For instance, in determining whether Deputy McConnell's actions were objectively unreasonable, it would be relevant to know, among other things, who, exactly, Mr. Harris posed his question to concerning a cell transfer, how much time elapsed between Mr. Harris's request to be moved to another cell and Deputy McConnell's use of force, whether any words were exchanged between the parties, whether Mr. Harris was handcuffed or otherwise restrained at the time of the use-of-force incident, and whether Mr. Harris was outside of his cell when these events occurred. See, e.g., Scriven v. Corby, No. 5:20-CV-03110-JAR, KGG, 2021 WL 2222682, at *10 (D. Kan. June 2, 2021) (finding an objectively unreasonable amount of force, where it was alleged that the detention officer “repeatedly kicked [the plaintiff]'s knee out while [the plaintiff] was being led down a staircase in handcuffs, causing [the plaintiff] to fall and hit the steps multiple times and resulting in injuries so serious that [the plaintiff] could not walk or stand and required a wheelchair”); Chapman v. Hedderman, No. CIV-20-825-D, 2021 WL 2149322, at *4-5 (W.D. Okla. May 26, 2021) (finding the amount of force allegedly used against a detainee to be objectively unreasonable, in part, because the detainee was said to have been “secure in her cell” at the time of the use-of-force incident, and thus, there was no “significant security concern given that the officers could simply have closed [the detainee]'s cell door”).
Further, Mr. Harris provides no factual basis to evaluate the specific amount of force used to “handcuff” and “taser” him, to put him into a “chokehold, ” to “slam[]” his head “to the ground, ” or to “assault” him. See Routt v. Howard, 764 Fed.Appx. 762, 766 (10th Cir. 2019) (finding allegation-that the detention officer “grabbed” the pretrial detainee's arm and “pushed him awkwardly to his cell”-insufficient to state a claim for relief, because “[i]t is not objectively unreasonable for a jail officer to hold a detainee's arm and push him, even awkwardly, through a jail hallway”); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.”). Nor does Plaintiff allege whether, or to what extent, he was either refusing to comply with jail officials' commands, or resisting jail officials' attempts to restrain him, at the time that of these events. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019) (holding the use of force, as detailed in the complaint, to be objectively unreasonable, where “the plaintiff allegedly was thrown or caused to fall, either onto the floor or stairs, ” “the physical abuse continued” even after the plaintiff fell, the plaintiff “was not resisting, ” the defendant “used abusive language, ” and the defendant's conduct “resulted in significant injuries” to the plaintiff); Eaves v. El Paso Cnty. Bd. of Cnty. Comm'rs, No. 16-cv- 01065-KLM, 2017 WL 1243013, at *8 (D. Colo. Mar. 24, 2017) (finding a viable Fourteenth Amendment excessive force claim, where the complaint's allegations reasonably suggested that the plaintiff “had not done anything to warrant being taken to Special Detention”); Salazar v. White, No. 14-cv-02081-RM-CBS, 2015 WL 13730682, at *3 (D. Colo. July 7, 2015) (finding a viable Fourteenth Amendment excessive force claim, where the complaint alleged, among other things, that the officer “continued to punch” the plaintiff, even after he was handcuffed, and “kicked him savagely, ” even though the plaintiff was not resisting).
Moreover, the Amended Prisoner Complaint is devoid of sufficient facts from which to determine the nexus, if any, between Deputy McConnell's use of force and Mr. Harris's resulting “medical disorder, ” “prominent scarring, ” and “ongoing pain, ” or from which to gauge the severity of those claimed injuries. See Marshall v. Milyard, 415 Fed.Appx. 850, 852-53 (10th Cir. 2011) (holding that a prison official's actions of “grabb[ing]” the plaintiff's arm and “d[igging] his fingernails into it” failed to show a constitutional rights violation, where the only resulting injury alleged was “redness and bruising”); Schabow v. Steggs, No. 16-cv-02232-RBJ-KLM, 2018 WL 1014140, at *5 (D. Colo. Feb. 21, 2018) (“Plaintiff alleges bruising to his hand from the tray slot slamming on it but fails to provide any allegations to demonstrate that his bruise was severe enough, on its own, to demonstrate that he was subjected to excessive force.”). Indeed, it is unclear from Plaintiff's operative pleading whether his resulting injuries still persist, or have since abated.
B. Conclusion
On this record, then, Mr. Harris's excessive force allegations, as set forth in his Amended Prisoner Complaint, do not state a claim upon which relief may be granted. As such, Mr. Harris has failed to plausibly allege any violation of his constitutional rights by Deputy McConnell. For that reason, Deputy McConnell is entitled to qualified immunity in this case. See Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001) (“If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.”); Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (“[A] defendant is entitled to qualified immunity if the plaintiff fails to show a violation of a constitutional right at all.”). Accordingly, Deputy McConnell's request for dismissal of the Amended Prisoner Complaint, in its entirety, should be granted.
Even assuming that Plaintiff's allegations were sufficient to state a plausible claim for relief, Plaintiff has failed to respond to Defendant's motion to dismiss, and thus, has not met his burden to show that the constitutional right at issue was “clearly established” at the time of the incident in question at ACDF. Estate of Smart, 951 F.3d at 1168. As a result, Deputy McConnell would still be entitled to qualified immunity with respect to Mr. Harris's excessive force claim against him, irrespective of the sufficiency of his allegations. Holmes, 830 F.3d at 1134-35 (“[I]f the plaintiff fails to establish either prong of the two-pronged qualified-immunity standard, the defendant prevails on the defense.”); see Kelley v. Wright, No. 2:19-CV-02278-JAR-JPO, 2019 WL 6700375, at *9 (D. Kan. Dec. 9, 2019) (holding that a defendant was entitled to qualified immunity with respect to a pretrial detainee's Fourteenth Amendment excessive force claim, where the defendant's motion to dismiss was unopposed, and where the complaint failed to allege the use of objectively unreasonable force).
II. Plaintiff's Motion
As a final matter, four months after Deputy McConnell filed his motion to dismiss, on March 24, 2021, Mr. Harris filed a motion, alternatively seeking “a change of venue for this case, ” the referral of this case “to another United States magistrate judge, ” or “further knowledge of this matter at hand.” (Pl.'s Mot. 1.) Because the court finds that Defendant's motion to dismiss should be granted, it is recommended that Plaintiff's motion be denied as moot.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that “Defendant Deputy Sheriff McConnell's Motion to Dismiss” (Doc. No. 24) be GRANTED. It is further
RECOMMENDED that the “Motion Requesting a Change of Venue” (Doc. No. 43) be DENIED as MOOT.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and 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. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).