Opinion
Civil Action No. 20-cv-00328-CMA-STV
03-31-2020
MANUEL JOSEPH MCGEE, Plaintiff, v. GABRIEL PACHECO, PAMELA JONES, and CORRECTIONAL OFFICER JOHN DOE, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for a Request for an Order for Protective Custody (the "Motion") [#25], which has been referred to this Court [#26]. This Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that neither oral argument nor an evidentiary hearing would materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.
I. BACKGROUND
Plaintiff Manuel Joseph McGee brings this lawsuit against Defendants Gabriel Pacheco, Pamela Jones, and Correctional Officer John Doe (the "John Doe Defendant") based upon incidents that allegedly occurred while Plaintiff was detained at the San Carlos Correctional Facility ("SCCF"). [#17] On or about October 4, 2019, while Plaintiff was incarcerated at SCCF, Plaintiff had a disagreement with two officers, and Plaintiff was escorted back to his cell. [Id. at 8] At the time, Plaintiff had a broken right forearm that required treatment with a six-inch steel plate with six screws. [Id. at 6] Plaintiff requested to speak the to the shift commander about the incident and, when the shift commander did not promptly come to talk to Plaintiff, Plaintiff flooded his cell and made threats of self-harm in order to ensure a meeting with the shift commander. [Id. at 8] During his meeting with the shift commander, Plaintiff requested to be moved from Unit 1R to Unit 2W within SCCF to get away from the two officers with whom he had the disagreement, and the shift commander agreed. [Id. at 9]
Plaintiff was then taken to the Unit 2W multipurpose room to speak with a mental health technician, because of the threats of self-harm he had made. [Id.] Once in the multi-purpose room, the John Doe Defendant placed Plaintiff in universal restraints as was required for an inmate who had made threats of self-harm. [Id. at 10] The John Doe Defendant "was acting very aggressive, moving very fast, and intentionally pulling on the[] chains very hard, which caused severe pain in [Plaintiff's] broken right forearm." [Id.] Plaintiff told the John Doe Defendant that he had a broken right forearm and "pleaded with [him] to loosen the right handcuff, but he refused to reply." [Id. at 10-11] Plaintiff then asked Officer Pacheo, who was standing at Plaintiff's right side, if he could loosen the handcuff on Plaintiff's right forearm, but Officer Pacheo ignored Plaintiff. [Id. at 11] After the John Doe Defendant and Officer Pacheo left, another officer showed up, and Plaintiff again pleaded for him to loosen the right handcuff but he too ignored Plaintiff. [Id.] Plaintiff asked the mental health technician to get someone from medical, and she said that she would try, but no nurse ever showed up. [Id.] Plaintiff also asked every officer who entered the multipurpose room to call medical, but they did not respond to Plaintiff. [Id.]
Plaintiff was kept in the multipurpose room for four to five hours, and then was sent—still in the universal restraints—to the back hallway to get a strip search to be placed on mental health watch. [Id. at 12] Officer Pacheo conducted the strip search. [Id.] Ms. Jones, who is a nurse at SCCF, then arrived to do a restraint check as required to make sure the restraints are not cutting off circulation to an inmate's limbs. [Id.] Pursuant to this requirement, the nurse is required to check to make sure the restraints are loose enough that the nurse is able to insert a finger between the handcuff and skin, and, if the restraints are too tight, the nurse is supposed to order the officer to loosen them. [Id.] Ms. Jones did not conduct a proper restraint check and did not request that Plaintiff's restraints be loosened. [Id. at 12-13] Ms. Jones was unable to get her finger inside the handcuff because it was too tight. [Id. at 13] When Ms. Jones asked Plaintiff whether he had any injuries, he responded that his right forearm was broken and the restraint was too tight. [Id.] Plaintiff told Ms. Jones that the John Doe Defendant placed the handcuffs extremely tightly around the broken arm and noted that he was feeling numbness in the broken right forearm. [Id.] Ms. Jones commented that Plaintiff's arm was "red," but when Plaintiff asked if Ms. Jones could have the officer loosen the right handcuff, she ignored him and left the back hallway. [Id.]
After Ms. Jones left, Officer Pacheo told Plaintiff to put his arms behind his back to be recuffed so that he could be placed in his cell for the night. [Id. at 15] Plaintiff placed his left arm behind his back, but was unable to place his right arm behind his back because it would have required him to twist his arm in a way that he could not as a result of the restraint being too tight and his arm being broken. [Id.] Plaintiff told Officer Pacheo that he needed to loosen the right handcuff, but Officer Pacheo did not listen and instead forced Plaintiff's right arm behind his back, causing sharp and piercing pain throughout Plaintiff's broken arm. [Id. at 15-16] Officer Pacheo then pulled the right arm back really fast and twisted it. [Id. at 16] Plaintiff screamed out in pain and told Officer Pacheo the right handcuff was too tight to turn his arm like that. [Id.] Officer Pacheo responded that the handcuffs would be coming off anyway, but Plaintiff's arm was already badly injured. [Id.]
After he was placed in the mental health watch cell, Plaintiff immediately called the control center for a medical emergency. [Id.] Ms. Jones responded to the call, but said "I'm not giving you a medical emergency for that" and refused to give Plaintiff pain medication or take photographs of the injured right arm. [Id.] Plaintiff began kicking his cell door, and Ms. Jones returned and told Plaintiff that medical emergencies did not cover injuries to an inmate's limbs but rather only addressed air, heart, and lungs. [Id. at 16-17] Plaintiff then asked Ms. Jones for Tylenol for the pain, but she told Plaintiff he would have to make a medical request to the medical provider. [Id. at 17]
The next morning, on October 5, 2019, Plaintiff met with a mental health technician and was taken off mental health watch. [Id.] Plaintiff made multiple requests for a medical emergency but no medical provider ever responded. [Id.] Plaintiff was then told he needed to submit a medical request form, which he did that same day. [Id. at 18] Five days later, on October 10, 2019, Plaintiff's medical request form was answered. [Id.] The provider refused to take photographs of the injury and refused Plaintiff's request for ice, but gave Plaintiff Tylenol and ordered an x-ray. [Id.] Plaintiff waited three weeks for the x-ray, making multiple requests of medical staff, but was told that he needed to be patient. [Id. at 19] On October 31, 2019, Plaintiff filed a grievance seeking the x-ray, and an x-ray was taken the next morning. [Id.]
On February 7, 2020, Plaintiff filed the instant lawsuit. [#1] At the time Plaintiff filed the lawsuit, he was no longer at SCCF, but instead was at the Colorado State Penitentiary ("CSP") in Canon City, Colorado. [#1 at 2] On March 12, 2020, Plaintiff filed an Amended Prisoner Complaint, asserting claims against Officer Pacheo and the John Doe Defendant for excessive force and claims against Ms. Jones for failing to order the officers to loosen the handcuff and failing to provide Plaintiff necessary medical care. [#17 at 22-23]
On March 30, 2020, Plaintiff filed the instant Motion. [#25] Through the Motion, Plaintiff seeks an order requiring that he be placed in "protective custody permanently or for the remainder of the case." [Id. at 1] The Court thus construes the Motion as a motion for injunctive relief.
II. LEGAL STANDARD
A. Pro Se Litigant
"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). Moreover, pro se parties must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
B. Preliminary Injunction
Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders. Pursuant to D.C.COLO.LCivR 65.1(a) the party seeking a temporary restraining order must certify that she has made efforts to provide notice to the adverse party. Here, Plaintiff's Motion was filed on the CM-ECF system and thus Defendants were electronically served with the Motion. "Where the opposing party has notice, the procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction." Emmis Commc'ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Wyo. Jan. 23, 2001).
In order to obtain a preliminary injunction, the moving party must prove: "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). "As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Schrier v. Univ. Of Co., 427 F.3d 1253, 1258 (10th Cir. 2005) (internal quotation denied).
III. ANALYSIS
Through the Motion, Plaintiff seeks an order requiring that he be placed in "protective custody permanently or for the remainder of the case." [#25 at 1] Plaintiff contends that he is being targeted by five separate prison gangs based upon past altercations with gang members and prior testimony he offered against gang members. [Id. at 2-3] According to the Motion, in one or two months, Plaintiff will be moved off of the management control unit ("MCU"), and pressured to go onto a close custody transition unit ("CCTU") where he will have more interaction with other inmates and be placed at risk of injury that would prevent him from prosecuting this case. [Id. at 2-4] According to Plaintiff, if he refuses to go into CCTU, he will be placed in an intake cell for seven to 30 days with no access to bedding or clothing and where he will be unable to meet court deadlines. [Id.] Plaintiff thus seeks to have the Court intervene to require CSP to house Plaintiff in "protective custody." [Id. at 4]
None of the Defendants named in the instant lawsuit, however, is employed at CSP. According to the Amended Prisoner Complaint, the John Doe Defendant and Officer Pacheo are both correctional officers at SCCF, and Ms. Jones is a nurse at SCCF. [#17 at 4-5] It thus is clear that, as employees of SCCF, none of the named defendants are in a position to provide the relief Plaintiff seeks—e.g., placement in protective custody at CSP. Plaintiff thus "seeks prospective relief against [defendants] who cannot presently carry out that prospective relief." Cox v. Owens, No. 18-CV-0011-WJM-KLM, 2019 WL 2052160, at *4 (D. Colo. May 9, 2019). Put another way, Plaintiff's request for injunctive relief is not redressable by Defendants and Plaintiff thus lacks standing to bring a motion for injunctive relief against Defendants seeking that relief. See Turner v. McGee, 681 F.3d 1215, 1218 (10th Cir. 2012) (instructing that "redressability turns on the scope of authority of the defendants" and the Court must ask whether the defendant, enjoined as the plaintiff has requested, could provide the remedy the plaintiff seeks).
To the extent Plaintiff seeks an injunction against the Department of Corrections generally, the Department of Corrections is not a party to this case and Plaintiff has not satisfied his burden to obtain a temporary restraining order against a non-party. Where a party seeks an injunction against a non-party, "it [ ] heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors noted above but those considerations must also constitute the 'appropriate circumstances' . . . to justify issuing an injunction against a non-party." Andrews v. Andrews, 160 F. App'x 798, 800 (10th Cir. 2005). Such "appropriate circumstances" require the non-party to be "in a position to frustrate [or facilitate] the implementation of a court order or the proper administration of justice." Id. at 799 (quoting United States v. New York Tel. Co., 434 U.S. 159, 174 (1977)). Here, Plaintiff fails to offer any argument that the Department of Corrections is frustrating the implementation of a court order or otherwise is frustrating the proper administration of justice in this case. To the contrary, Plaintiff has actively participated in the prosecution of his claims in this case.
Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Motion [#25] be DENIED. DATED: March 31, 2020
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 States Magistrate Judge