Opinion
Civil Action No. 1:19-cv-02073-RM-STV
03-18-2020
ZHANDA CAREY, Plaintiff, v. CARLOS BUITRAGO, TINA LOVATO, JOHN WEST, DONALD DEMELLO, JAMES ANDERSON, BILLY HUMBLES, CHASE AUMILLER, DANIEL TRUJILLO, RONALDO GRANZIER, and JAMES CASIAS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on three motions to dismiss: (1) Defendant Carlos Buitrago's Motion to Dismiss Plaintiff's Amended Complaint (the "Buitrago Motion") [#27]; (2) the Cell Extraction Defendants' Partial Motion to Dismiss Plaintiff's Amended Complaint (the "Cell Extraction Defendants Motion") [#50]; and Defendant Casias's Motion to Dismiss Plaintiff's Amended Complaint (the "Casias Motion") [#51] (collectively, the "Motions"). The Motions have been referred to this Court. [##28, 52] The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, the Court respectfully RECOMMENDS that the Buitrago Motion be GRANTED, the Cell Extraction Defendants Motion be GRANTED, and the Casias Motion be GRANTED. I. BACKGROUND
The facts are drawn from the allegations in Plaintiff's Amended Complaint [#23], which must be taken as true when considering a motion to dismiss. Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
Plaintiff is incarcerated at the Denver County Jail. On June 24, 2019, Plaintiff was feeling suicidal and informed Deputy Carlos Buitrago that he had plans to kill himself. [#23 at 7] Deputy Buitrago responded that he "d[id] not see any blood so [Plaintiff] clearly [was] not suicidal." [Id.] Deputy Buitrago walked away from Plaintiff's cell door. [Id.] Plaintiff then began banging on the window of his cell door and on a light fixture in his cell with a broom, in an attempt to break off a piece of glass to harm himself with. [Id.]
Sergeant Tina Lovato approached Plaintiff's cell and attempted to help Plaintiff calm down. [Id.] Sergeant Lovato stated she would allow Plaintiff to make a phone call, but that he needed to stop breaking the door window and lights, and refrain from self-harming. [Id.] Sergeant Lovato brought Plaintiff food to eat in his cell, though the cell was wet due to flooding, and there were electric sparks and glass from the broken light. [Id.]
Plaintiff asked to move from his destroyed cell and Sergeant Lovato allowed Plaintiff to walk to a different room. [Id. at 8] As Plaintiff changed cells, Deputy Buitrago again provoked Plaintiff, stating that he would not allow him to make a phone call because Plaintiff "played [him]self." [Id.] Plaintiff again began attempting to self-harm, and a medical provider responded. [Id.] After the medical provider left, Deputy Buitrago returned to Plaintiff's door, taunting him and saying, "I told you you['re] not going to do nothing[,] pussy." [Id.] Plaintiff then began chewing and swallowing glass. [Id.] Deputy Buitrago and Sergeant James Casias responded, informing Plaintiff that they would allow him to call his sister. [Id.] Plaintiff stated he was willing to move to the medical unit. [Id.]
As Plaintiff waited to move to the medical unit, he still had glass in his mouth. [Id.] Deputy Buitrago and Sergeant Casias returned to Plaintiff's cell to inform him that Sergeant Casias was calling Plaintiff's sister. [Id.] Deputy Buitrago then moved out of the way and Deputies Chase Aumiller, Billy Humbles, Donald Demello, Ronaldo Granzier, Daniel Trujillo, and John West entered Plaintiff's cell, as Sergeant Lovato and Deputy Anderson observed from outside the cell (collectively, the "Cell Extraction Defendants"). [Id.] Deputy Aumiller hit Plaintiff with his shield, knocking Plaintiff onto the glass-covered floor, as Deputy Humbles began to repeatedly punch Plaintiff in the face. [Id.] Deputy Trujillo kicked Plaintiff in his kidneys and Deputy West put his knee on Plaintiff's face. [Id.] Plaintiff was in and out of consciousness during the incident. [Id.] Deputies Demello, West, Granzier, and Aumiller told Plaintiff to stop resisting and did not stop the use of force by the other officers. [Id.] Sergeant Lovato and Deputy Anderson had observed the altercation from outside the cell. [Id.] Deputy Anderson entered the cell and tased Plaintiff with a Taser gun, causing Plaintiff to swallow more glass. [Id.] Plaintiff was told to move his arm, but he responded to officers that he was in too much pain to do so. [Id. at 9] Deputy Anderson then tased Plaintiff again. [Id.]
Deputies Aumiller, Humbles, Demello, Granzier, Trujillo, and West forced Plaintiff to walk barefoot on the glass-covered floor. [Id.] Plaintiff was not wearing any clothes other than his underwear and was covered in blood after the officers beat him. [Id.] Plaintiff was brought to the medical unit and seen by medical staff. [Id.] Plaintiff informed medical staff that he had swallowed glass, but staff members did not pump his stomach and simply left him in a restraint chair per Sergeant Lovato's instructions. [Id.]
On June 28, 2019, Plaintiff asked for the names of the officers involved in the incident, but Deputy Buitrago attempted to conceal their identities. [Id.] Plaintiff was told to write a grievance, but no officer names were provided in response. [Id.]
Plaintiff, proceeding pro se, filed the instant action on July 17, 2019. [#1] In the Amended Complaint, Plaintiff appears to assert the following claims: (1) unspecified violations of Colorado state law against all Defendants [#23 at 7, 12]; (2) official capacity claims against all Defendants [id. at 3-6]; (3) Eighth Amendment deliberate indifference claims against Deputy Buitrago, Sergeant Casias, and Sergeant Lovato [id. at 7-10]; (4) Eighth Amendment excessive force claims against the Cell Extraction Defendants and claims for failure to intervene in the excessive force against Deputy Buitrago and Sergeant Lovato [id. at 8-10]; and (5) a Fourteenth Amendment Equal Protection claim against the Cell Extraction Defendants, based on officers' removal of Plaintiff from his cell without recording the incident with body cameras [id. at 9-10]. Plaintiff seeks ten million dollars in compensatory damages and ten million dollars in punitive damages from each Defendant and from the Denver Sheriff's Department. [Id. at 12] Plaintiff also seeks an order from the Court that the Denver Sheriff's Department be investigated to prevent its employees from acting illegally, that officers be required to wear body cameras, that padded rooms be provided for inmates at suicide risk, and that inmates be provided with the badge numbers of the officers involved in a grievance. [Id. at 13]
Plaintiff also cites to the Universal Declaration of Human Rights, but it is unclear whether he intended to assert a separate claim pursuant to that declaration. [See #23 at 10] Regardless, Plaintiff does not have standing to bring a claim under the Universal Declaration of Human Rights and any such claim would fail. See Kyler v. Montezuma Cty., 203 F.3d 835, 2000 WL 93996, at *1 (10th Cir. 2000) (Table decision) (finding petitioner did not have standing to bring a claim under the Universal Declaration of Human Rights because that document "call[s] upon governments to take certain action and [is] not addressed to the judicial branch of our government," and accordingly does not "confer rights upon individual citizens").
Defendants have moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [See generally ##27, 50, 51] All Defendants argue that any state law claims are subject to dismissal for lack of subject matter jurisdiction, and that any official capacity claims also fail because Plaintiff has not pleaded any policy or custom by the Denver County Jail that led to the alleged violations of his rights. [Id.] In the Buitrago Motion, Deputy Buitrago additionally contends that he is entitled to qualified immunity on Plaintiff's deliberate indifference claims. [See generally #27] Plaintiff has filed a response to the Buitrago Motion [#49] and Deputy Buitrago has replied [#54].
In the Cell Extraction Defendants Motion, the Cell Extraction Defendants similarly argue that they are entitled to qualified immunity on Plaintiff's Fourteenth Amendment Equal Protection claim and Eighth Amendment deliberate indifference claim, and that Sergeant Lovato is entitled to qualified immunity on Plaintiff's claim of unsanitary conditions of confinement. [See generally #50] The Cell Extraction Defendants do not challenge Plaintiff's excessive force claim brought against them in their individual capacities. [Id. at 3 n.3] Finally, in the Casias Motion, Sergeant Casias argues that he is entitled to qualified immunity on Plaintiff's Eighth Amendment claims, including to the extent Plaintiff seeks to impose supervisory liability on Sergeant Casias through those claims. [#51]
On January 16, 2020, this Court entered a Minute Order noting Plaintiff's failure to respond to either the Cell Extraction Defendants Motion or the Casias Motion. [#55] The Court sua sponte extended the deadline for Plaintiff to respond until February 6, 2020, and warned Plaintiff that should he fail to file a timely response to the Motions, the Court could issue a recommendation on those Motions without consideration of any arguments offered by Plaintiff, and Plaintiff's arguments in opposition to the Motions could be deemed waived. [Id. (citing Cole v. New Mexico, 58 F. App'x 825, 829 (10th Cir. 2003))] Nevertheless, Plaintiff has failed to respond to those Motions.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for "lack of subject-matter jurisdiction." Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. 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). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"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) (quoting Twombly, 550 U.S. at 570). Plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath or conduct, much of it innocent, then the plaintiffs 'have not nudged their claims across the line from conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant." Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
The Court considers the arguments raised by Defendants with respect to each of the following claims asserted by Plaintiff: (1) the state law claims; (2) the official capacity claims; (3) the individual capacity claims arising under the Eighth Amendment; and (4) the individual capacity claims arising under the Fourteenth Amendment.
A. State Law Claims
In the Amended Complaint, Plaintiff alleges unspecified violations of "Colorado statutory law" and the Colorado Constitution. [#23 at 7, 12] Defendants move to dismiss these claims for lack of subject matter jurisdiction, because Plaintiff failed to provide the requisite notice under the Colorado Governmental Immunity Act ("CGIA") and because Plaintiff cannot seek relief under the Colorado Constitution. [#27 at 6-8; #50 at 7-9; #51 at 6] The Court agrees.
The Colorado Governmental Immunity Act ("CGIA") includes a notice provision that requires any person claiming to have suffered an injury by a public entity to file a written notice within 182 days after the date of the discovery of the injury as a jurisdictional prerequisite to filing suit. See Colo. Rev. Stat. § 24-10-109(1). "Colorado courts consistently hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal." Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 840 (10th Cir. 2003) (collecting cases); see also Rose v. City & Cty. of Denver, No. 17-CV-2263-MSK-STV, 2018 WL 1744723, at *3 (D. Colo. Apr. 11, 2018) (dismissing intentional infliction of emotional distress claim for failure to comply with CGIA's notice provision).
Section 24-10-109(1) states in full:
Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
Here, Plaintiff has not alleged compliance with the CGIA notice requirement in the Amended Complaint. Moreover, Defendants have submitted evidence confirming that Plaintiff did not comply with the notice requirement. Defendants have filed affidavits from Brett Malkowich, a Claims Adjuster whose responsibilities include reviewing notices of claims that are received by the City and County of Denver for claims against Denver or its employees. [#27-1 at ¶ 3; #50-1 at ¶ 3] Mr. Malkowich attests that based on his review of the appropriate database, Plaintiff did not file a notice of claim with Denver as to the instant litigation. [#27-1 at ¶¶ 4-5; #50-1 at ¶¶ 4-5] Because Plaintiff has not alleged compliance with CGIA's notice provisions, Plaintiff's state law claims necessarily fail.
When the moving party challenges the facts providing the basis for the Court's subject matter jurisdiction, the Court may not presume the truthfulness of the complaint's allegations. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Instead, the Court must make its own findings of fact and the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. Relying on evidence outside the pleadings does not convert a motion to dismiss pursuant to Rule 12(b)(1) into a motion for summary judgment. Id.
Moreover, Plaintiff cannot seek relief under the Colorado Constitution because no implied right of action exists for alleged violations of the state constitution when another remedy, such as an action under 42 U.S.C. § 1983, as Plaintiff asserts here, is available. See Bd. of Cty. Comm'rs v. Sundheim, 926 P.2d 545, 553 (Colo. 1996).
The Court concludes that it lacks subject matter jurisdiction over Plaintiff's state law claims. Accordingly, the Court respectfully RECOMMENDS that the Motions be GRANTED to the extent they seek dismissal of Plaintiff's state law claims, and that those claims be DISMISSED WITHOUT PREJUDICE. See, e.g., Kelly v. Wilson, 426 F. App'x 629, 633 (10th Cir. 2011) (holding that dismissal for lack of subject matter jurisdiction must be without prejudice); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (same).
B. Official Capacity Claims
Defendants also move to dismiss Plaintiff's claims to the extent they are asserted against Defendants in their official capacities or asserted against Denver itself. [#27 at 12-13; #50 at 18-19; #51 at 12-13] Defendants additionally contend that punitive damages are not available against a municipality. [Id.]
"Suing individual defendants in their official capacities under §1983 . . . is essentially another way of pleading an action against the county or municipality they represent," and thus courts apply the same standards of liability to municipalities as to official capacity claims against municipal officials. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)). "[M]unicipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff." Fofana v. Jefferson Cty. Sheriff's, No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, to establish a county's liability, the plaintiff must demonstrate that a municipal policy or custom directly caused his injury. Id.
"A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision." Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). After identifying an official policy or custom, the plaintiff must demonstrate causation by showing that the policy or custom "is the moving force behind the injury alleged." Cacioppo v. Town of Vail, 528 F. App'x 929, 931 (10th Cir. 2013) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (same). Finally, the plaintiff must demonstrate "that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury." Cacioppo, 528 F. App'x at 931 (quoting Schneider, 717 F.3d at 769).
Applied here, Plaintiff does not identify any policy or custom that caused his injuries. Moreover, punitive damages are not available against a municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Accordingly, the Court respectfully RECOMMENDS that any official capacity claims be DISMISSED WITHOUT PREJUDICE, and any request for punitive damages against Defendants in their official capacities be STRICKEN. See, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend" (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations "which, upon further investigation and development, could raise substantial issues").
C. Individual Capacity Claims
Defendants argue that they are entitled to qualified immunity with respect to Plaintiff's claims under the Eighth Amendment and Fourteenth Amendment, to the extent those claims are asserted against them in their individual capacities. [#27 at 8-12; #50 at 9-18; #51 at 7-12] 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." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Once a defense of qualified immunity is asserted, "the onus is on the plaintiff to demonstrate '(1) that the official violated a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged conduct.'" Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
The Tenth Circuit has explained the "clearly established" prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established . . . . Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). "If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity." Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
The Court considers each constitutional claim in turn.
In the Amended Complaint, in addition to monetary damages, Plaintiff also appears to seek injunctive relief, including an investigation of the City and County of Denver, an order that officers be required to wear body cameras, and the provision of padded rooms for suicidal inmates. [#23 at 13] Such relief directed at the City and County of Denver does not appear proper when Plaintiff has not stated any official capacity or municipal liability claims. Moreover, although the qualified immunity doctrine does not bar claims for injunctive relief, see, e.g., Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 267 (10th Cir. 1994) (collecting cases), because, as discussed below, Plaintiff does not state any violations of his constitutional rights beyond the excessive force claims, his claims for injunctive relief in conjunction with those other alleged constitutional violations also necessarily fail. See, e.g., Abu-Fakher v. Bode, 175 F. App' x 179, 181-82 (10th Cir. 2006); Atkinson v. Ortiz, No. 06-cv-01725-PAB-MJ, 2009 WL 3161960, at *10 (D. Colo. Sept. 29, 2009).
1. Eighth Amendment Claims
The Eighth Amendment to the United States Constitution protects a prisoner's right to "humane conditions of confinement guided by 'contemporary standards of decency.'" Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to "ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials violate this standard when they are deliberately indifferent to an inmate's serious medical needs. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000); see also Barrie v. Grand Cty., 119 F.3d 862, 866 (10th Cir. 1997) (holding that claims based on suicide while in jail are "considered and treated as claims based on the failure of jail officials to provide medical care for those in their custody"). "Failure to protect an inmate from self-harm may constitute deliberate indifference in violation of the Eighth Amendment," but "prison officials are not required to unerringly detect the tendency for self-harm in prisoners." Coad v. Waters, No. 11-cv-01564-PAB-CBS, 2012 WL 3744640, at *2-3 (D. Colo. June 14, 2012) (collecting cases), report and recommendation adopted in part, rejected in part on other grounds, 2012 WL 3744637 (D. Colo. Aug. 28, 2012). A prison official may be deliberately indifferent to a prisoner's medical need where that official "prevent[s] an inmate from receiving treatment or den[ies] him access to medical personnel capable of evaluating the need for treatment." Sealock, 218 F.3d at 1211.
There is some discrepancy here as to whether Plaintiff is a pretrial detainee [see #23 at 3; #27 at 8 n.6; #51 at 7 n.4], which would impact whether the Court analyzes Plaintiff's excessive force claims under the Eighth Amendment or the Fourteenth Amendment Due Process Clause. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-75 (2015). But Plaintiff's excessive force claims are largely not at issue here. [See #50 at 3 n.3] To the extent Plaintiff intended to assert an excessive force claim against Deputy Buitrago for failure to intervene, that claim fails on lack of personal involvement, as discussed below. And insofar as Plaintiff's Amended Complaint could be construed as raising an excessive force claim against Sergeant Casias, such a claim would fail under Iqbal and Twombly as vague and conclusory, as the Court discusses in the analysis below. With respect to the Court's analysis of the deliberate indifference claims, if Plaintiff were a pretrial detainee, he would be entitled to at least the same degree of protection as that which he would be entitled to as a parolee. See Barrie v. Grand Cty., 119 F.3d 862, 868 (10th Cir. 1997) ("Under the Fourteenth Amendment's Due Process Clause, pretrial detainees are entitled to the same degree of protection against denial of medical care as that afforded convicted inmates under the Eighth Amendment."). But, it remains an open question in this Circuit as to whether, in light of Kingsley, Plaintiff would receive heightened protections as a pretrial detainee—it remains undecided as to whether a pretrial detainee must still demonstrate the subjective prong of a deliberate indifference claim, or whether he need only show that the officials' actions were objectively unreasonable. Burke v. Regalado, 935 F.3d 960, 991, 991 n.9 (10th Cir. 2019); Estate of Vallina v. Cty. of Teller Sheriff's Officer, 757 F. App'x 643, 646-47 (10th Cir. 2018); see also Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Under either standard, Plaintiff has failed to state a constitutional violation against either Sergeant Casias or Sergeant Lovato—as explained below, his allegations against Sergeant Casias are too vague and his allegations against Sergeant Lovato fail both the objective and subjective prongs of a deliberate indifference analysis. With respect to Deputy Buitrago, it is possible that the potentially heightened protections for pretrial detainees could impact the Court's constitutional analysis. Even so, however, for the reasons detailed below, Plaintiff's deliberate indifference claim against Deputy Buitrago would still fail under the clearly established prong of a qualified immunity analysis. As a result, because Plaintiff's deliberate indifference claims fail regardless of the standard, and in the absence of briefing on the potential impact of Kingsley on a pretrial detainee's deliberate indifference claims, the Court declines to decide this issue. Burke, 935 F.3d at 991 n.9.
"'Deliberate indifference' involves both an objective and a subjective component. The objective component is met if the deprivation is 'sufficiently serious.'" Id. at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In the context of liability for prison suicide, "the risk of, or potential for, suicide involves a sufficiently serious medical need and/or harm such that the objective prong . . . is met." Barrie, 119 F.3d at 866.
The subjective component of a deliberate indifference claim "is met if a prison official 'knows of and disregards an excessive risk to inmate health or safety.'" Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, "[t]he subjective component is akin to 'recklessness in the criminal law,' where, to act recklessly, a 'person must "consciously disregard" a substantial risk of serious harm.'" Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839). In other words, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and []he must also draw the inference.'" Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837); see also id. at 753 ("The question is: were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?"). In the context of an inmate-suicide case, the subjective component requires the defendant to have "actual knowledge . . . of an individual inmate's substantial risk of suicide." Cox v. Glanz, 800 F.3d 1231, 1249 (10th Cir. 2015). "[A] 'mere opportunity for suicide, without more,' is not enough to impose . . . liability." Yazzie v. Bd. of Cty. Comm'rs of San Juan Cty., No. CV 12-479 KG/GBW, 2014 WL 12786915, at *4 (D.N.M. Oct. 16, 2014) (quoting Snow ex rel. Snow v. City of Citronelle, 420 F.3d 1262, 1269 (11th Cir. 2005)).
The Court liberally construes Plaintiff's Amended Complaint as asserting the following Eighth Amendment claims against Defendants in their individual capacities: (a) a deliberate indifference and failure to intervene claim against Deputy Buitrago; (b) a deliberate indifference claim against Sergeant Casias; and (c) a conditions of confinement claim against Sergeant Lovato. [See generally #23] The Court addresses each claim in turn.
Other than the conditions of confinement claim against Sergeant Lovato, the Court does not construe Plaintiff's Amended Complaint as otherwise asserting a deliberate indifference claim against the Cell Extraction Defendants. Instead, Plaintiff's remaining Eighth Amendment claims against Sergeant Lovato and the other Cell Extraction Defendants appear limited to excessive force claims [see generally #23], which the Cell Extraction Defendants do not challenge here [#50 at 3 n.3]. Moreover, the Supreme Court has held that "application of the deliberate indifference standard is inappropriate when authorities use force" against a prisoner. Hudson v. McMillian, 503 U.S. 1, 6 (1992); see also Farmer, 511 U.S. at 835; DeSpain v. Uphof, 264 F.3d 965, 978 (10th Cir. 2001). In the excessive force context, the plaintiff must show more than deliberate indifference, and the question is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6 (quotation omitted). In light of this authority, and because Plaintiff asserts excessive force claims against the Cell Extraction Defendants, the Court does not also construe those claims as deliberate indifference claims.
a. Deliberate Indifference and Failure to Intervene Claims Against Deputy Buitrago
Liberally construing the Amended Complaint, as the Court must, the Court reads the Amended Complaint as claiming that Deputy Buitrago violated Plaintiff's Eighth Amendment rights by: (1) verbally harassing and taunting Plaintiff; (2) his deliberate indifference to Plaintiff's suicide risk; and (3) his failure to intervene when the Cell Extraction Defendants used excessive force against Plaintiff. [#23 at 7-8, 10; see also #49 at 2]
Plaintiff alleges that Deputy Buitrago taunted and provoked him, including telling Plaintiff that he "d[id] not see any blood so [Plaintiff] clearly [was] not suicidal" [#23 at 7], and calling Plaintiff a "pussy" after Plaintiff's attempts at self-harm [id. at 8]. While these comments are insensitive and unprofessional, at best, "[n]o matter how deplorable or unprofessional an officer's conduct may be, . . . conduct that is 'nothing more than threats and verbal taunts do[es] not violate the Eighth Amendment.'" Rainey v. City of Stillwater, No. CIV-08-491-W, 2009 WL 10702890, at *3 (W.D. Okla. Apr. 16, 2009) (quoting McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)); see also Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (holding deputy's harassing comments throughout the night to inmate who was in disciplinary segregation did not amount to a constitutional violation), cert. denied, 139 S. Ct. 800 (2019); Martinez v. Zadroga, 213 F. App'x 729, 731 (10th Cir. 2007) (finding a barrage of verbal assaults toward a prisoner confined in isolation after a suicide attempt failed to state a claim under the Eighth Amendment); Moore v. Morris, 116 F. App'x 203, 205 (10th Cir. 2004) (holding allegation that verbal abuse caused embarrassment and emotional injury in the form of pain, suffering, mental stress, and depression was nevertheless not actionable). Accordingly, Plaintiff's allegations of Deputy Buitrago's verbal harassment and taunting, alone, do not give rise to an Eighth Amendment violation.
On the other hand, the Amended Complaint could be read as asserting that Deputy Buitrago's crass comments, and failure to immediately act in response to Plaintiff's statements of self-harm, constituted Deputy Buitrago's deliberate indifference to Plaintiff's risk of suicide. [See #23 at 7] Again, Plaintiff must plausibly plead facts that Deputy Buitrago had actual knowledge of Plaintiff's "substantial risk of suicide," and recklessly failed to act. Cox, 800 F.3d at 1249.
"[T]he risk of, or potential for, suicide involves a sufficiently serious medical need and/or harm such that the objective prong . . . is met." Estate of Blodgett v. Correct Care Sols., LLC, No. 17-cv-2690-WJM-NRN, 2018 WL 6528109, at *9 (D. Colo. Dec. 12, 2018) (quoting duBois v. Payne Cty. Bd. of Cty. Comm'rs, 543 F. App'x 841, 846 (10th Cir. 2013)). Nevertheless, any deliberate indifference claim against Deputy Buitrago fails on the subjective prong. Although Deputy Buitrago walked away from Plaintiff's cell door when Plaintiff initially informed Deputy Buitrago that he had plans to kill himself, Plaintiff does not allege that he had a history of suicidal tendencies, that he was being treated for any conditions that would have made him more susceptible to suicidal ideation, or any other facts suggesting that Deputy Buitrago would have had actual knowledge of a substantial risk of suicide when Plaintiff made his initial remark. Cf. Dominguez v. Colfax Cty., CV 14-875 MV/KRS, 2018 WL 3621018, at *13 (D.N.M. July 30, 2018) (finding sufficient facts to put jailers on notice of inmate's substantial risk of harm where inmate had previous psychiatric history, had previously attempted suicide, was suffering psychosis, and needed medication); Estate of Olivas v. City & Cty. of Denver, 929 F. Supp. 1329, 1332, 1336 (D. Colo. 1996) (finding it was a question for the jury whether defendant officer was deliberately indifferent to plaintiff's risk of suicide, where plaintiff's girlfriend told the officer that plaintiff was drunk, had a knife, threatened to kill her and her children, had gone to the bathroom to get a razor blade to cut himself, and the officer had observed blood droplets in the bathroom sink, but the officer did not inform any other officers).
Moreover, Plaintiff has not identified, nor has the Court uncovered, any cases from this Circuit demonstrating that a single remark of self-harm without more would put an official on notice of a "substantial risk of suicide." Cox, 800 F.3d at 1249 (emphasis added). Accordingly, it was not clearly established that a single statement of suicidal ideation would satisfy the subjective component of an Eighth Amendment claim. And numerous courts in other Circuits have held that "[a] single off-hand comment" about killing oneself "cannot reasonably constitute a serious suicide threat." Bell v. Stiger, 937 F.2d 1340, 1344 (8th Cir. 1991), overruled on other grounds by Farmer, 511 U.S. at 837-40. In Bell, the Eighth Circuit explained that the inmate's single remark about shooting himself, when no gun was available, did not demonstrate a substantial risk of suicide. Id. The court went on to explain that "even if a listener more sensitive than [the officer] might have taken the remark seriously, [the officer's] failure to interpret it as a genuine manifestation of a suicide threat would at most constitute negligence, not deliberate indifference." Id.; see also Green v. Coleman, 575 F. App'x 44, 48 (3d Cir. 2014) (dismissing deliberate indifference claim because plaintiff failed to allege that defendant knew or should have known of the plaintiff's risk of suicide, where the plaintiff alleged that he had told the defendant on one occasion that he felt suicidal, and four times had attempted suicide, but did not allege that the defendant was aware of those attempts); Gregoire v. Class, 236 F.3d 413, 418 (8th Cir. 2000) ("Our cases indicate that a single phone call to an official who has no other reason to think an inmate is at suicide risk, most likely does not create a strong likelihood that infliction of self-harm will result."); Hensley v. Bucks Cty. Corr. Facility, No. 15-6098, 2016 WL 4247637, at *11 (E.D. Pa. Aug. 11, 2016) (finding a single comment by inmate that he was suicidal and wanted to be placed on suicide watch was not an "obviously serious suicide threat," where the complaint did not allege that the officer knew of the inmate's prior suicide attempts, complaints to the facility, diagnoses, and failure to receive treatment). Thus even assuming that Deputy Buitrago violated Plaintiff's constitutional rights by ignoring Plaintiff's initial statement that he was suicidal, Deputy Buitrago is entitled to qualified immunity on this claim. Plaintiff has pointed to no case law from this Circuit demonstrating that an official can have actual knowledge of a substantial risk of suicide based on a single comment, and accordingly, it was not clearly established that ignoring a single statement of suicidal ideation would violate the Eighth Amendment.
Nor has clear Tenth Circuit authority eliminated this requirement for a deliberate indifference to suicide risk claim, even for pretrial detainees. See supra n. 6
Bell used a purely objective standard to evaluate deliberate indifference before the Supreme Court in Farmer clarified that deliberate indifference under the Eighth Amendment requires a subjective component. The difference in standard does not affect the Court's citation to Bell here. See Gregoire v. Class, 236 F.3d 413, 418 n.4 (8th Cir. 2000)
Moreover, once Plaintiff's attempts at self-harm arguably did present a substantial risk of suicide, e.g., when Plaintiff began to destroy his cell and swallow glass, Plaintiff's allegations demonstrate that officers responded promptly. After Plaintiff began destroying his first cell, Sergeant Lovato attempted to calm him down and moved Plaintiff to a new cell. [#23 at 7-8] When Plaintiff again attempted self-harm, he was seen by a medical provider. [Id. at 8] Though Deputy Buitrago again taunted Plaintiff after the provider left, when Plaintiff began chewing and swallowing glass, Deputy Buitrago and Sergeant Casias responded, informing Plaintiff that they would allow him to call his sister, and initiating Plaintiff's move to the medical unit. [Id.] Accordingly, Deputy Buitrago did not "prevent [Plaintiff] from receiving treatment" and did not "deny him access to medical personnel capable of evaluating the need for treatment." Sealock, 218 F.3d at 1211; see also Washington v. Owens, No. 17-cv-00941-MEH, 2018 WL 684768, at *7 (D. Colo. Feb. 2, 2018) ("Although knowledge of [plaintiff's] suicide attempt would certainly put [defendant] on notice that failing to treat the mental health condition could result in substantial harm, [plaintiff] does not allege that [defendant] refused him treatment after the suicide attempt . . . . [but rather] the Second Amended Complaint suggests that [defendant] provided adequate care once she learned of the suicide attempt."); Means v. Cullen, 297 F. Supp. 2d 1148, 1153-54 (W.D. Wis. 2003) (finding that defendant's statement that no one would care if he died, while plaintiff was under clinical observation, at most "demonstrate[d] a lack of sensitivity, rather than such a gross departure from ordinary care that plaintiff's Eighth Amendment rights were violated").
To the extent Plaintiff argues that Deputy Buitrago failed to follow protocol for suicidal inmates, such an allegation does not support an Eighth Amendment violation. See, e.g., Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) ("No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols."); Ernst v. Creek Cty. Pub. Facilities Auth., 697 F. App'x 931, 934 (10th Cir. 2017) ("The Supreme Court has held that simply failing to follow jail policies is not a constitutional violation in and of itself."); Tanberg v. Sholtis, 401 F.3d 1151, 1162-64 (10th Cir. 2005) (finding a department's training on, or policy related to, employee conduct is not the law, nor can it establish or change the scope of constitutional rights as interpreted by case law). Accordingly, Plaintiff has failed to plausibly plead that Deputy Buitrago was deliberately indifferent to a substantial risk of Plaintiff's self-harm and thus Deputy Buitrago is entitled to qualified immunity on Plaintiff's deliberate indifference claim.
Finally, Deputy Buitrago argues that Plaintiff has not plausibly pleaded that Deputy Buitrago failed to intervene in the excessive force used against Plaintiff during the cell extraction. [#54 at 8] The Court first notes that it is far from clear whether a failure to intervene claim is in fact asserted against Deputy Buitrago in the Amended Complaint. [See generally #23] Plaintiff clarified that he intended to pursue such a claim in his Response. [#49 at 2] But the Court does not consider allegations raised for the first time in a response, even by a pro se plaintiff, and Plaintiff "may not amend his complaint via his Responses." Luck v. Smith, No. 17-cv-00183-WJM-NYW, 2017 WL 3970512, at *4 (D. Colo. Sept. 8, 2017) (citing In re Qwest Communications Intl., Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004)); see also Boyer v. Bd. of Cty. Comm'rs of Johnson Cty., 922 F. Supp. 476, 482 (D. Kan. 1996) ("It is inappropriate to use a response to a motion to dismiss to essentially raise a new claim for the first time."). Nonetheless, even if Plaintiff properly raised a failure to intervene claim, such a claim fails.
The Tenth Circuit has made clear that while personal involvement is necessary for Section 1983 liability, "[p]ersonal involvement is not limited solely to situations where a defendant violates a plaintiff's rights by physically placing hands on him." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). "An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know . . . that any constitutional violation has been committed by a law enforcement official." Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quotation omitted). However, "[i]n order to be liable for failure to intervene, [an] officer[ ] must have observe[d] or ha[d] reason to know of a constitutional violation and have had a realistic opportunity to intervene." Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (quotation omitted).
Here, Plaintiff only alleges that Deputy Buitrago moved out of the way when Plaintiff's cell door was opened for the Cell Extraction Defendants. [#23 at 8] Plaintiff does not plead any facts demonstrating that Deputy Buitrago remained present after the Cell Extraction Defendants entered the cell, that he knew that the force being used was excessive, or that he had a realistic opportunity to intervene. See, e.g., Jordan v. Unified Gov't of Wyandotte Cty., 100 F. Supp. 3d 1111, 1115 (D. Kan. 2015) ("[P]laintiffs' failure-to-intervene theory fails to state a claim for excessive force against the [defendant] agents because the . . . complaint is devoid of any allegation remotely suggesting that the agents witnessed the use of force at all, let alone had a realistic opportunity to stop it."); Gutierrez v. Cobos, No. 2:12-cv-980 JH/GBW, 2014 WL 12797234, at *11 (D.N.M. Mar. 26, 2014) ("The Complaint does not contain factual allegations to show that Deputy Eby was present at the time of any beating or tasing, that Eby had reason to know the force used was excessive, or that Eby had a realistic opportunity to prevent any use of excessive force."). Accordingly, Plaintiff has failed to plead that Deputy Buitrago violated a constitutional right in his alleged failure to intervene, and Deputy Buitrago is entitled to qualified immunity on this claim.
For the foregoing reasons, Plaintiff has failed to state any Eighth Amendment claims against Deputy Buitrago and Deputy Buitrago is thus entitled to qualified immunity on those claims. See, e.g., Gross, 245 F.3d at 1156 (holding that if plaintiff "fails to satisfy either" qualified immunity prong—violation of a constitutional right or that the right was clearly established—"the court must grant the defendant qualified immunity"). Accordingly, the Court respectfully RECOMMENDS that Deputy Buitrago's Motion be GRANTED and that Plaintiff's claims against Deputy Buitrago be DISMISSED WITHOUT PREJUDICE. See, e.g., Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127. Because no other claims have been pleaded against Deputy Buitrago, the Court respectfully RECOMMENDS that Deputy Buitrago be dismissed from this matter.
Plaintiff further alleges that Deputy Buitrago actively sought to conceal the identities of the Defendants involved in the altercation when Plaintiff asked, and instead Plaintiff was told to write a grievance. [#23 at 9] No names were provided in response to Plaintiff's grievance. [Id.] The Court has some difficulty determining what right Plaintiff is alleging was violated when Deputy Buitrago sought to conceal the identities of other Defendants. Moreover, the lack of response to an inmate's grievance does not constitute a constitutional violation, Sawyer v. Green, 316 F. App'x 715, 717 n.3 (10th Cir. 2008), and the Amended Complaint does not indicate whether Deputy Buitrago had any personal involvement in the grievance process, see Pemberton v. Patton, 673 F. App'x 860, 867 (10th Cir. 2016). Accordingly, these allegations do not state a claim against Deputy Buitrago.
b. Deliberate Indifference Claim Against Sergeant Casias
In the Amended Complaint, Plaintiff alleges that Sergeant Casias told Plaintiff he would allow Plaintiff to call his sister, that Sergeant Casias knew Plaintiff had glass in his mouth while Plaintiff was waiting to walk to the medical unit, and that Sergeant Casias "lulled [Plaintiff] into a false sense of security . . . about being able to walk to medical." [#23 at 8, 9] In the Casias Motion, Sergeant Casias contends that he is entitled to qualified immunity on these claims because there are no allegations that Sergeant Casias violated Plaintiff's constitutional rights, and Sergeant Casias' conduct did not violate clearly established law. [See generally #51]
The Court concludes that Plaintiff's allegations are simply too vague and conclusory to state a claim against Sergeant Casias. It is unclear how Sergeant Casias lulled Plaintiff into a false sense of security, and what impact, if any, that had on Plaintiff. Plaintiff merely states that Sergeant Casias knew Plaintiff had glass in his mouth, but how Sergeant Casias would have known this information is far from clear in the Amended Complaint. See, e.g., Shauf v. Rios, 313 F. Supp. 3d 1262, 1269 (W.D. Okla. 2018) ("[T]o warrant Twombly's presumption of truth, Plaintiff must accompany his conclusory phrase 'knew or should have known' with facts—be they circumstantial or direct—that make deliberate indifference 'plausible.'" (internal citation omitted) (citing Tafoya v. Salaar, 516 F.3d 912, 916-17 (10th Cir. 2008)). Moreover, even assuming Sergeant Casias knew Plaintiff had glass in his mouth, Plaintiff's allegations suggest that Sergeant Casias was involved in removing the camera that Plaintiff had destroyed in the second cell, and also getting Plaintiff medical attention—rather than ignoring any risk Plaintiff may have posed to himself. [See #23 at 8, 9]
To the extent Plaintiff intended to assert an excessive force claim against Sergeant Casias, there are no allegations suggesting that Sergeant Casias was involved in the cell extraction, nor that he directed the cell extraction. See, e.g., Burke v. Regalado, 935 F.3d 960, 997 (10th Cir. 2019) ("[T]he three elements required to establish a successful § 1983 claim against a defendant based on his . . . supervisory responsibilities [are]: (1) personal involvement[,] (2) causation, and (3) state of mind." (quotation omitted)). In short, the vague and conclusory allegations in the Amended Complaint fail to state a claim against Sergeant Casias. See, e.g., Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 564 n.10 (noting that a claim that does not mention a specific time, place, or person leaves a defendant with "little idea where to begin"); see also Faircloth v. Schwartz, No. 12-cv-02764-BNB, 2013 WL 1222326, at *5 (D. Colo. Mar. 25, 2013) ("[T]he vague and conclusory allegation that Defendant . . . acted with deliberate indifference does not demonstrate the existence of a constitutional violation.").
Accordingly, Plaintiff has failed to allege a constitutional violation by Sergeant Casias, and Sergeant Casias is entitled to qualified immunity. The Court therefore respectfully RECOMMENDS that the Casias Motion [#51] be GRANTED to the extent it seeks dismissal of Plaintiff's Eighth Amendment claims against Sergeant Casias in his individual capacity, and that those claims be DISMISSED WITHOUT PREJUDICE. See, e.g., Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
c. Conditions of Confinement Claim Against Sergeant Lovato
Plaintiff alleges that after he destroyed his first cell, Sergeant Lovato brought him food to eat in a clearly unsafe environment. [#23 at 7] He claims that he has "a right to a clean and safe environment" and his meal could have waited because his cell "was wet due to . . . flooding" and "there were electric sparks from the broken light and glass everywhere." [Id. at 7] The Court construes this claim as alleging a conditions of confinement violation of the Eighth Amendment. Sergeant Lovato argues that Plaintiff cannot show that the conditions of confinement were sufficiently serious, or that Sergeant Lovato knew of a substantial risk of serious harm to Plaintiff and disregarded that risk. [#50 at 15-17] The Court agrees.
"The Eighth Amendment's prohibition on cruel and unusual punishment does not mandate comfortable prisons and conditions imposed may be restrictive and even harsh." DeSpain v. Uphof, 264 F.3d 965, 973 (10th Cir. 2001) (quotations omitted). The deliberate indifference test also applies in this context such that the plaintiff must demonstrate that officials were deliberately indifferent to sufficiently serious conditions of confinement under both an objective and subjective prong. See Farmer, 511 U.S. at 834. Under the objective prong, "a prisoner must show that conditions were more than uncomfortable, and instead rose to the level of 'conditions posing a substantial risk of serious harm' to inmate health or safety." DeSpain, 264 F.3d at 973 (quoting Farmer, 511 U.S. at 834). Determining the conditions of confinement depends on "the particular facts of each situation" and the "circumstances, nature, and duration of the challenged conditions must be carefully considered." Id. at 974 (quotation omitted). "While no single factor controls the outcome of these cases, the length of exposure to the conditions is often of prime importance." Id. The Tenth Circuit has "held that a situation involving filthy cells, poor lighting, inadequate ventilation or air cooling, and unappetizing food simply [does] not rise to the level of a constitutional violation where prisoners were exposed to the conditions for only forty-eight hours." Id. (quotation omitted).
Once again, it is possible that this standard as applied to pretrial detainees has been impacted by Kingsley. See supra n. 6. Even so, however, Plaintiff's conditions of confinement claim fails the objective prong for the reasons set forth herein.
Under the subjective prong, an official "cannot be found liable . . . for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Id. at 975 (quoting Farmer, 511 U.S. at 837). The official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (quoting Farmer, 511 U.S. at 837). "If an official is aware of the potential for harm but takes reasonable efforts to avoid or alleviate that harm, [s]he bears no liability under this standard." Id.
Here, Plaintiff has failed to plead facts to satisfy either prong. First, Plaintiff has failed to allege that his cell conditions, with a wet floor, sparks, and glass, were sufficiently serious. While it is not entirely clear how long Plaintiff remained in the destroyed cell, he alleges that he was moved to a new cell, at the very latest within the same day. [#23 at 8] Moreover, Plaintiff does not allege that he suffered any injury due to his exposure to the flooding, sparks, and glass, and as such, his allegations cannot give rise to an Eighth Amendment conditions violation. See, e.g., Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir. 1993) (finding allegations were insufficient to state an Eighth Amendment claim where the plaintiff alleged "no specific facts connecting the unconstitutional conditions with his own experiences . . ., or indicating how the conditions caused him injury"); Custard v. Armijo, No. 15-cv-00448-GPG, 2015 WL 2407103, at *4 (D. Colo. May 19, 2015) (finding that "[c]onfining a prisoner to a flooded cell for a brief period of time does not violate the Eighth Amendment, especially where there is no allegation that the flooding involved human waste" and where plaintiff did not allege facts to show that he was at risk of harm due to the flooding (quotations omitted)); Turner v. Felzien, No. 11-cv-03033-PAB-MJW, 2013 WL 1093001, at *5 (D. Colo. Mar. 15, 2013) ("[B]ecause of the relatively brief period of confinement [of 12 days] and the fact that plaintiff alleges no injuries . . . the totality of the conditions of confinement suffered by plaintiff does not approach the conditions of confinement that the Supreme Court and Tenth Circuit have found to violate the Eighth Amendment." (collecting cases)); Smith-Bey v. Reid, No. 08-cv-01356-DME-KLM, 2009 WL 721748, at *13 (D. Colo. Mar. 13, 2009) (finding "Plaintiff has not come close to alleging a substantial risk of serious harm in this case, and in fact, has alleged no injury or risk whatsoever," and concluding that "the deprivation of hygiene items for sixteen days" did not constitute extreme conditions giving rise to an Eighth Amendment violation); see also 42 U.S.C. § 1997e(e) ("No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act."); Christy v. Lindamood, No. 1:18-cv-00008, 2018 WL 1907447, at *7 (M.D. Tenn. Apr. 23, 2018) (finding that even if a wet cell with broken glass and exposed live electrical wires were sufficiently serious conditions, because plaintiff had not claimed an injury or harm as a result of the conditions, he could not state a viable Eighth Amendment claim).
Plaintiff's allegations also do not satisfy the subjective prong. Plaintiff simply alleges that Sergeant Lovato approached his cell to calm him down and bring him food. [#23 at 7] It is unclear from the First Amended Complaint whether Sergeant Lovato knew or should have known that Plaintiff had caused destruction in his cell. But after Plaintiff asked Sergeant Lovato to be moved to a new cell, Sergeant Lovato complied and walked Plaintiff to a new room. [Id. at 8] These allegations demonstrate that Sergeant Lovato took "reasonable efforts" to avoid or alleviate Plaintiff's exposure to the hazards in his cell, and thus cannot be liable under the Eighth Amendment. DeSpain, 264 F.3d at 975.
To the extent Plaintiff further alleges that Sergeant Lovato failed to follow protocol for responding to suicidal inmates [#23 at 7], such allegations also fail to state an Eighth Amendment claim, for the same reasons discussed with respect to Deputy Buitrago in Section III.C.1.a supra.
For the foregoing reasons, Plaintiff has failed to state an Eighth Amendment conditions of confinement claim against Sergeant Lovato, and Sergeant Lovato is thus entitled to qualified immunity. Accordingly, the Court respectfully RECOMMENDS that the Cell Extraction Defendants Motion be GRANTED to the extent it seeks dismissal of the conditions of confinement claim, and that claim be DISMISSED WITHOUT PREJUDICE. See, e.g., Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
d. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Eighth Amendment claims against Deputy Buitrago, Sergeant Casias, and Sergeant Lovato be DISMISSED WITHOUT PREJDUICE. If this Recommendation is adopted, and the state law claims and official capacity claims are also dismissed, no other claims will remain against Deputy Buitrago and Sergeant Casias, and the Court further RECOMMENDS that those Defendants be dismissed from this matter.
2. Fourteenth Amendment Equal Protection Claim
Plaintiff appears to assert a Fourteenth Amendment Equal Protection claim against the Cell Extraction Defendants for failing to record Plaintiff's removal from the cell. [#23 at 9, 10] The Cell Extraction Defendants argue that the equal protection claim fails, including because Plaintiff has not alleged that he was treated differently from any similarly situated detainees or prisoners. [#50 at 13-15] The Court agrees.
To the extent Plaintiff also intended to assert an equal protection claim against Deputy Buitrago for failure to record the altercations during the cell removal, Plaintiff does not include any allegations with respect to whether Deputy Buitrago was even present during the cell extraction [see generally #23], as discussed above, and thus any such claim against Deputy Buitrago fails. See Pemberton, 673 F. App'x at 867 ("In § 1983 cases, a plaintiff must adequately allege each defendant's personal participation in a constitutional violation.").
To state a viable claim under the Equal Protection clause of the Fourteenth Amendment, Plaintiff "must first make a threshold showing that he [was] treated differently from others who were similarly situated to him." Carney v. Okla. Dep't of Pub. Safety, 875 F.3d 1347, 1353 (10th Cir. 2017) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998)). Because Plaintiff has not alleged that he was treated differently from other inmates in the Denver County Jail "based on his sex, race, religion, or membership in another cognizable group," to the extent Plaintiff asserts an equal protection claim, it is a "class-of-one" claim. Shifrin v. Toll, 483 F. App'x 446, 449 (10th Cir. 2012). To prevail on such a claim, "a plaintiff must allege and prove (1) that []he has been intentionally treated differently from others similarly situated and (2) that there is no rational basis for the difference in treatment." Haik v. Salt Lake City Corp., 567 F. App'x 621, 631 (10th Cir. 2014); see also id. at 632 ("[T]he first thing a class-of-one plaintiff must establish is that others similarly situated in every material respect were treated differently." (quotation omitted)). "[W]hen the class consists of one person or entity, it is exceedingly difficult to demonstrate that any difference in treatment is not attributable to a quirk of the plaintiff or even to the fallibility of administrators whose inconsistency is as random as it is inevitable." Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1213 (10th Cir. 2006).
Here, Plaintiff's allegations do not address similarity with other detainees or prisoners in the Denver County Jail, and thus Plaintiff has failed to demonstrate that he was intentionally treated differently from others who were similarly situated in all material respects. Haik, 567 F. App'x at 632. Plaintiff also fails to plausibly allege that the practice of not recording a cell extraction, particularly in the wake of Plaintiff destroying the cameras in his cell and attempting to use the debris for self-harm, is irrational and not in furtherance of a legitimate penological goal. See id. at 631; Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir. 2004).
Accordingly, Plaintiff fails to state an equal protection claim and the Cell Extraction Defendants are therefore entitled to qualified immunity on the equal protection claim. Accordingly, the Court respectfully RECOMMENDS that the Cell Extraction Defendants Motion be GRANTED to the extent it seeks to dismiss Plaintiff's equal protection claim, and that the equal protection claim be DISMISSED WITHOUT PREJUDICE. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Buitrago Motion [#27], the Cell Extraction Defendants Motion [#50], and the Casias Motion [#51] be GRANTED. Specifically, the Court recommends as follows:
(1) The Motions be GRANTED to the extent they seek dismissal of Plaintiff's state law claims, and that the state law claims be DISMISSED WITHOUT PREJUDICE.
(2) The Motions be GRANTED to the extent they seek dismissal of Plaintiff's official capacity claims, that those claims be DISMISSED WITHOUT PREJUDICE, and that any request for punitive damages against Defendants in their official capacities be STRICKEN.
(3) The Motions be GRANTED to the extent they seek dismissal of Plaintiff's Eighth Amendment claims against Deputy Buitrago, Sergeant Casias, and Sergeant Lovato in their individual capacities, and that those claims be DISMISSED WITHOUT PREJUDICE.
(4) The Motions be GRANTED to the extent they seek dismissal of Plaintiff's Fourteenth Amendment Equal Protection claim against the Cell Extraction
Defendants in their individual capacities, and that the equal protection claim be DISMISSED WITHOUT PREJUDICE.DATED: March 18, 2020
(5) Plaintiff's excessive force claims, asserted against the Cell Extraction Defendants, be allowed to proceed. [See #50 at 3 n.3]
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, 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); Griego v. Padilla (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. 2121 East 30th Street, 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 of fact, legal conclusions, 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 of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
s/Scott T. Varholak
United Stated Magistrate Judge