Opinion
Civil Action 21-cv-02937-NYW-STV
11-08-2022
DEMARCO WHITE, Plaintiff, v. JESSE BALDBRIDGE; TAYLOR CAMP; and TERRY JACQUEZ; Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United Stated Magistrate Judge
This matter is before the Court on Defendant Terry Jaques's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) & 12(b)(6) (the “Motion”). [#29] The Motion has been referred to this Court. [#32] The Court has carefully considered the Motion 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 Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Second Amended Complaint (the “Complaint”) [#11], which the Court accepts as true at this stage of the proceedings. See 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)).
At the time of the events giving rise to the present suit, Plaintiff Demarco White was a Colorado Department of Corrections (“CDOC”) inmate incarcerated at the Limon Correctional Facility (“LCF”). [#11 at 8]Plaintiff is medically impaired, and suffers from a pulmonary condition. [Id. at 6]
For consistency, the Court refers to the actual page number of the .pdf document uploaded to the Electronic Court Filing system, rather than to the numbering printed on each page.
On January 24, 2021, OfficersJesse Baldridge and Taylor Camp entered Plaintiff's cell in response to Plaintiff requiring medical attention. [Id. at 8] They found Plaintiff in his bunk, unresponsive and incoherent. [Id.] Plaintiff did not present any reasonable security risk. [Id. at 10] Officer Camp, for reasons that are unclear, “intentionally and unnecessarily[,] with sadistic state of mind and with total disregard for the Plaintiff's medical condition and pulmonary condition” administered an oleoresin capsicum agent (“pepper spray”) to Plaintiff. [Id. at 8] This caused Plaintiff “asphyxiation, pain and suffering, and undetermined damage to the Plaintiff's pulmonary condition.” [Id. (cleaned up)]
The Court notes that, although they are named as defendants in the caption of this case, Officers Baldridge and Camp do not appear to have been served with process as of the time of this Recommendation, and are not yet parties to this suit. [See ##29 at 2 n.1, 63, 73]
Erroneously referred to in the complaint and the case caption as “Jesse Baldbridge.” [See #29 at 2]
The events leading up to Plaintiff's injury are not clear from the Complaint. [See generally id.] Plaintiff adds significant factual allegations and context in his response to the Motion, which help clarify the sequence of events. [ See #58 at 3-5] In its evaluation of a motion to dismiss, however, the Court may not consider facts alleged for the first time in a response to a motion. In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (A plaintiff “may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”)
Simultaneously, Officer Baldridge grabbed Plaintiff's body and arm, twisting Plaintiff's arm “in a sadistic manner applying excessive use of force and causing extreme damage and pain to the Plaintiff.” [Id. at 5] Officer Baldridge then forced Plaintiff's body to the floor “by slamming the Plaintiff [who] was in a defenseless[,] uncombative state.” [Id.] Officer Baldridge continued to twist Plaintiff's arm, causing him “extreme pain and injury” and ultimately causing injury to Plaintiff's back in the form of a herniated disc requiring surgery. [Id.] Officer Baldridge then handcuffed Plaintiff's arms behind his back. [Id. at 9]
Plaintiff alleges that Officers Baldridge's and Camp's actions were pursuant to an “administrative policy and practice of correctional officers' unreasonable use of excessive force by handcuffing offenders when they require medical attention” and on “the policy and custom of LCF officers' use of oleoresin capsicum agent [and handcuffs] upon offenders who are experiencing medical emergencies.” [Id. at 6, 9 (cleaned up)] Plaintiff alleges that these policies were implemented by Defendant Terry Jaques,warden of LCF (“Defendant”). [Id. at 1, 6] Plaintiff further alleges that Defendant “knew of the problem with the practice, policy or custom” pursuant to which Officers Baldridge and Camp injured Plaintiff, but “failed to correct and supervise any change in the policy practice or custom which resulted in the injuries and damages to the Plaintiff's person.” [Id. at 9-10]
Incorrectly referred to in the case caption and Complaint as “Terry Jacquez.” [See generally #29]
Plaintiff initiated the instant action on November 1, 2021.[#1] He filed the operative Second Amended Complaint (the “Complaint”) on March 14, 2022. [#11] The complaint states a claim under 42 U.S.C. § 1983 (“Section 1983”) for violations of Plaintiff's Eighth Amendment right to be free of cruel and unusual punishment. [Id. at 5-12] This claim is brought against all defendants in both their personal and official capacities. [Id. at 2-3] The Complaint seeks: (1) monetary damages for Plaintiff's injuries; (2) an injunction prohibiting defendants from using pepper spray against Plaintiff; and (3) an injunction requiring defendants to provide adequate medical treatment to Plaintiff. [Id. at 14-15] On June 27, 2022, Defendant Jaques filed the instant Motion, seeking dismissal of all claims against him. [#29] Plaintiff has responded to the Motion [#58] and Defendant has filed a reply [#72].
Prior to initiating the instant action, Plaintiff was transferred from LCF to the Fremont Correctional Facility (“FCF”). [#1 at 2]
But see Note 3.
II. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, 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 proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing a facial attack on subject matter jurisdiction, the Court “presume[s] all of the allegations contained in the amended complaint to be true.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
B. Federal Rule of Civil Procedure 12(b)(6)
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.” 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 of 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).
C. Pro Se Litigants
“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)).
III. ANALYSIS
The Motion alleges that this Court lacks subject matter jurisdiction over the claims for injunctive relief [#29 at 5-7], that the claims against Defendant in his official capacity are barred by the Eleventh Amendment [id. at 7], and that the claims against Defendant in his individual capacity fail to state a claim [id. at 8-12]. The Court addresses each argument in turn.
A. Injunctive Relief
Defendant argues that Plaintiff's claims for injunctive relief are moot, and the Court therefore lacks jurisdiction to hear them, because Plaintiff has been transferred out of Defendant's facility and cannot demonstrate a credible threat of future injury by Defendant. [Id. at 5-7] The Court agrees.
The constitutional mootness doctrine considers whether “a definite controversy exists throughout the litigation and whether conclusive relief may still be conferred by the court despite the lapse of time and any change of circumstances that may have occurred since the commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting 15 James Wm. Moore et al., Moore's Federal Practice § 101.90 (3d ed. 2010)). If a claim is moot, the court lacks subject matter jurisdiction. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). “The touchstone of the mootness inquiry is whether the controversy continues to touch the legal relations of parties having adverse legal interests in the outcome of the case, and this legal interest must be more than simply the satisfaction of a declaration that a person was wronged.” Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (quotations omitted) (finding prisoner's claims for declaratory and injunctive relief moot in light of his release from prison). “An inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief related to conditions of confinement.” Mitchell v. Estrada, 225 Fed.Appx. 737, 741 (10th Cir. 2007) (citing Green, 108 F.3d at 1299-1300 (holding that release from prison moots claims for declaratory and injunctive relief), Love v. Summit County, 776 F.2d 908, 910 n.4, 912 (10th Cir. 1985) (indicating that the general rule applies to a transfer between prisons)).
Here, in addition to damages, Plaintiff seeks injunctive relief in the form of injunctions: (1) prohibiting Defendant from using pepper spray on Plaintiff, and (2) requiring Defendant to provide adequate medical treatment for Plaintiff's injuries and for the exacerbation of Plaintiff's preexisting conditions. [#11 at 14-15] But Plaintiff has been transferred to FCF and is no longer housed at LCF, where Defendant is employed. [Id. at 2-3] And Plaintiff does not demonstrate a reasonable expectation that he will be transferred back to FCF and be subject to the alleged conduct again. See, e.g., Murphy v. Hunt, 455 U.S. 478, 482 (1982) (recognizing exception to the mootness doctrine where there is a “reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party” (quotations omitted));
Plaintiff claims in his response to the Motion to Dismiss that the harm by defendants is ongoing, and that “nearly all of his injuries are both lingering and getting worse.” [#58 at 7] However, Plaintiff fails to show any likelihood that a decision in his favor enjoining Defendant from pepper spraying him in the future would redress these ongoing effects of his past injuries. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“[I]t must be likely . . . that the injury will be redressed by a favorable decision.” (quotation omitted)). To the extent to which Plaintiff is seeking an injunction compelling the provision of medical care, it is unclear how Defendant, the warden of LCF, could provide such medical care to Plaintiff, now housed at FCF.
McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (“[A] plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured [by the defendant] in the future.” (quotations omitted)).
Plaintiff's claims for injunctive relief are thus moot and the Court lacks jurisdiction to adjudicate them. Accordingly, the Court respectfully RECOMMENDS that Defendant's Motion be GRANTED to the extent it seeks dismissal of Plaintiff's claims for injunctive relief and that those claims be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. See Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977, 985 (10th Cir. 2010) (dismissal for lack of subject matter jurisdiction is generally without prejudice).
The foregoing analysis applies equally to Officers Baldridge and Camp, who are also sued as LCF officials. [See #11 at 2-3] Accordingly, the Court also respectfully RECOMMENDS sua sponte that any claims for injunctive relief against Officers Baldridge and Camp be DISMISSED WITHOUT PREJUDICE. See, e.g., McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (“Because mootness is a matter of jurisdiction, a court may raise the issue sua sponte.”).
Although not alleged by Plaintiff, to the extent to which Officers Baldridge and Camp may have separated from employment with CDOC [see #29 at 2 n.1], this is only a further way in which any injunctive relief sought against them would be moot. See Treff v. Cook, 16 F.3d 417, 1994 WL 28386, at *2 (10th Cir. 1994) (unpublished table decision) (affirming dismissal of claims for injunctive relief against former prison officials as moot, because those defendants were no longer employed by the prison system).
B. Official Capacity Claims
Defendant argues that, to the extent Plaintiff has sued him in his official capacity, Plaintiff's claims are barred by the Eleventh Amendment, and the Court therefore lacks jurisdiction. [#29 at 7] The Court agrees.
“It is well established that under the Eleventh Amendment, sovereign immunity prohibits federal courts from entertaining suits against states brought by their own citizens or citizens of another state without their consent.” Hunt v. Colorado Dep't of Corr., 271 F. app'x 778, 780 (10th Cir. 2008). “State sovereign immunity is more than immunity from liability-it actually deprives federal courts of subject-matter jurisdiction.” Wood v. Milyard, 414 Fed.Appx. 103, 105 (10th Cir. 2011). Sovereign immunity extends to state agencies functioning as an “arm” of the state, including the Colorado Department of Corrections (“CDOC”). Id. To the extent Defendant is being sued in his official capacity, he may “assert Eleventh Amendment immunity as an ‘arm' of the state in that [he] assumes the identity of” the CDOC. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002); see also Brackeen v. Brown, No. 11-cv-01677-RBJ-KMT, 2013 WL 328937, at *4 (D. Colo. Jan. 8, 2013) (“Plaintiff's claims for monetary relief against the CDOC Defendants in their official capacities constitute claims against the Colorado Department of Corrections.” (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)), recommendation adopted, 2013 WL 329007 (D. Colo. Jan. 29, 2013).
There are two primary exceptions to the sovereign immunity doctrine: Congress may abrogate a state's Eleventh Amendment immunity, or a state may waive its sovereign immunity and consent to be sued. Ruiz, 299 F.3d at 1181. Neither exception applies here. Section 1983 “does not abrogate state sovereign immunity-indeed, states are not even ‘persons' within the meaning of § 1983.” Wood, 414 Fed.Appx. at 105 (citing Will, 491 U.S. at 70); see also Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (“Neither states nor state officers sued in their official capacity [for monetary damages] are ‘persons' subject to suit under section 1983.” (citing Will, 491 U.S. at 70-71)). And Plaintiff does not argue that Colorado has consented to this suit. [see generally #11]; see also Wood, 414 Fed.Appx. at 105.
Accordingly, the Court finds that the Eleventh Amendment bars Plaintiff's damages claims against Defendant in his official capacity, and the Court thus lacks subject matter jurisdiction over such claims. The Court thus respectfully RECOMMENDS that Plaintiff's claims against Defendant in his official capacity for damages be DISMISSED WITHOUT PREJUDICE.
“Colorado's sovereign immunity deprives [the Court] of subject-matter jurisdiction over . . . the official-capacity claims” for damages against defendants as CDOC officials. Wood, 414 Fed.Appx. at 105. Because the Court dismisses for lack of subject matter jurisdiction, dismissal is without prejudice. See Garman, 630 F.3d at 985 (“Generally, a dismissal for lack of subject matter jurisdiction is without prejudice and does not have a preclusive effect.”); see also Farrell v. Schwartz, No. 14-cv-02903-MSK-CBS, 2015 WL 13730689, at *3 (D. Colo. Dec. 16, 2015) (dismissing official capacity claims for damages against CDOC officials without prejudice for lack of subject matter jurisdiction), recommendation adopted, 2016 WL 1156754 (D. Colo. Mar. 23, 2016).
The Court also respectfully RECOMMENDS sua sponte that Plaintiff's official capacity claims for damages against Officers Baldridge and Camp be DISMISSED WITHOUT PREJUDICE as barred by sovereign immunity. See, e.g., United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (“[A] court may raise the issue of Eleventh-Amendment immunity sua sponte.”); Cary v. Hickenlooper, No. 14-cv-00411-PAB-NYW, 2015 WL 5353823, at *1 (D. Colo. Sept. 15, 2015) (dismissing official capacity claims sua sponte as barred by sovereign immunity), aff'd, 673 Fed.Appx. 870 (10th Cir. 2016).
C. Individual Capacity Claims
Finally, Defendant argues that the claim against him in his individual capacity fails to satisfy the pleading standards of Rule 12(b)(6) because it fails to allege either Defendant's personal participation in the January 24, 2021 incident, or facts which could support a claim for relief under a supervisory liability theory. [#29 at 8-12] The Court agrees.
In order to maintain an individual capacity claim under Section 1983, a plaintiff must establish either personal or supervisory liability of the defendants. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Personal liability must be based on personal involvement in a constitutional violation. Id. And “it is particularly important in a § 1983 case brought against a number of government actors sued in their individual capacity . . . that the complaint make clear exactly who is alleged to have done what to whom . . . as distinguished from collective allegations.” Id. at 1165 (quotations omitted).
Defendant does not argue that the treatment of Plaintiff was constitutional. [See generally #29] For purposes of the instant Motion, therefore, the Court presumes without deciding that a constitutional violation occurred. See Davis v. City of Aurora, 705 F.Supp.2d 1243, 1263 (D. Colo. 2010) (“[A] supervisor ‘cannot be held liable in his individual capacity . . . for the actions of county officers under a theory of supervisory liability[] when there was no violation of plaintiff's constitutional rights.” (quoting Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir.2009))).
To assert a supervisory liability claim, the plaintiff must allege “an affirmative link between the constitutional deprivation and the supervisor's personal participation, exercise of control, or his failure to supervise.” Bertolo v. Benezee, 601 Fed.Appx. 636, 639 (10th Cir. 2015) (citing Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008)). Plaintiff does not allege that Defendant Jaques participated in the events of January 24, 2021, that he was aware Plaintiff was experiencing a medical emergency, that he knew that Officers Baldridge and Camp responded to that emergency through the use of pepper spray and handcuffs, that he directed them to do so, or that he approved of their conduct after the fact. [ See generally #11] Rather, he asserts that Defendant “is being sued due to his personal participation in the creation of policy, practice and customs of [LCF] officers to wrongfully, intentionally and sadistically apply handcuffs to offenders who[] are experiencing medical emergencies.” [#11 at 9] He also asserts that Defendant is responsible for “the creation of the policy and custom of [LCF] officers['] use of oleoresin capsicum agent upon offenders who[] are experiencing medical emergencies.” [ Id. ]
Defendant argues that no such policy of handcuffing and pepper spraying inmates experiencing medical emergencies exists. [#29 at 9] In support of this assertion, Defendant has filed a document titled “AR 300-16RD, Use of Force Options and Restraint Systems” as an exhibit to his Motion. [##29-3, 30; see also #29 at 9 n.4] This document has been filed under Level 2 restriction “due to security concerns and the high potential for misuse should this document be made public.” [#29 at 9 n.4; see also #35]; see also D.C.COLO.LCivR 7.2(b) (“Level 2 [restriction] limits access to the filing party and the court.”). Defendant asserts that the Court may consider this purported policy in the present analysis because “the complaint relies on and refers to [the] document, the authenticity of which the parties do not dispute.” [#29 at 9 n.4]; see also Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (“In addition to the complaint, the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)). However, it is not clear to the Court that “AR 300-16RD, Use of Force Options and Restraint Systems” is, in fact, the policy referred to in the Complaint and central to Plaintiff's claim. Nor does the Court find that Plaintiff has had any reasonable opportunity to dispute or not dispute the authenticity of a document which he has been prohibited from viewing. The Court therefore declines to consider the proffered policy in its present analysis of the Motion.
The Court therefore interprets Plaintiff's claim as alleging supervisory liability only on the theory that Defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy. See Davis v. City of Aurora, 705 F.Supp.2d 1243, 1263 (D. Colo. 2010) (“[T]he establishment or utilization of an unconstitutional policy or custom can serve as the supervisor's ‘affirmative link' to the constitutional violation.”); id. at 1264 (“[W]here an official with policymaking authority creates, actively endorses, or implements a policy which is constitutionally infirm, that official may face personal liability for the violations which result from the policy's application.”). To succeed on such a claim, Plaintiff must establish: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
To the extent to which Plaintiff may allege that Defendant engaged in deliberately indifferent training or supervision, such claim fails for the reasons discussed in Section 3, below.
1. The Policy
Courts in this circuit have analyzed Section 1983 supervisory liability claims under the analogous municipal liability principles set forth in Monell v. Department of Social Services, 436 U.S. 658 (1978), and its progeny. Butler v. City of Norman, 992 F.2d 1053, 1055-56 (10th Cir. 1993) (analyzing a police supervisor's liability according to Monell principles of municipal liability); Vasquez v. Davis, No. 14-cv-1433-WJM-CBS, 2016 WL 6997261, at *2 (D. Colo. Nov. 30, 2016) (explaining that “individual supervisory liability has absorbed elements of Monell liability”). Under that standard, “[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 Dept, 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 Fed.Appx. at 931 (quoting Schneider, 717 F.3d at 769).
It is unclear whether Plaintiff alleges that there is a formally promulgated policy or a final decision by a policymaker of handcuffing and pepper spraying inmates experiencing medical emergencies. [ See generally #11] To the extent to which Plaintiff alleges that LCF has a well-settled custom or practice of handcuffing and pepper spraying inmates experiencing medical emergencies, the Court finds that this allegation is not sufficiently pled. Plaintiff pleads no facts that any inmate other than him has ever been handcuffed or pepper sprayed while experiencing a medical emergency. [ See generally id. ] And a single instance of pepper spraying and handcuffing an inmate experiencing a medical emergency is insufficient to allege a well-settled custom or practice. See Sexton v. City of Colorado Springs, 530 F.Supp.3d 1044, 1071 (D. Colo. 2021) (finding two incidents “insufficient to show a practice so permanent and well settled that it constitutes a custom or usage”); see also Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (noting that “isolated and sporadic acts” do not establish municipal liability for Section 1983). Plaintiff's conclusory statements regarding the “policy and custom” at LCF, without any facts to support these statements, do not establish a policy for purposes of supervisory liability. Woodson v. Armor Corr. Health Servs., 2021 WL 1300596, at *15 (D. Colo. Feb. 8, 2021) (recommending dismissal of supervisory liability claim where the assertion of a policy was conclusory without supporting facts), recommendation adopted, 2021 WL 1050009 (D. Colo. Mar. 19, 2021); Starr v. Hayden, No. 20-3302-SAC, 2021 WL 826248, at *2 (D. Kan. Mar. 3, 2021) (“Coming forward with no facts about any policy or training involved here, the plaintiff's allegations of failure to train are nothing more [than] conclusory and speculative statements. Without something more about the training and policies, the plaintiff's bald allegations against the supervisory defendants fail to state a claim.”); Steele v. Okla. Dept of Corrs., 2017 WL 1208668, at *4 (W.D. Okla. Mar. 31,2017) (dismissing supervisory liability claim where the assertion of a policy was conclusory without supporting facts); see also Erickson v. City of Lakewood, Colorado, 489 F.Supp.3d 1192, 1206 (D. Colo. 2020) (“[A]t the pleading stage, the existence of a Monell policy is a ‘conclusion' to be built up to, rather than a ‘fact' to be baldly asserted.” (quotation omitted)). For this reason alone, Plaintiff's supervisory liability claim against Defendant fails.
2. Causation
To establish causation, a plaintiff must show that a supervisor defendant “set in motion a series of events that [he] knew or reasonably should have known would cause others to deprive [Plaintiff] of [his] constitutional rights.” Jensen v. Clyde, 989 F.3d 848, 858 (10th Cir. 2021) (quotation omitted). Plaintiff alleges that “Defendant [Baldridge's] sadistic twisting of the Plaintiff's arms injuring the Plaintiff's arms and body is the result of the implementation of the policy and practice which [Defendant Jaques] has direct responsibility and involvement.” [#11 at ¶ 6] This, however, is precisely the kind of formulaic recitation of the elements of a cause of action that “will not do” to state a claim. Twombly, 550 U.S. at 555. Other than this conclusory assertion, Plaintiff pleads no facts that would support a reasonable inference that Defendant set in motion a series of events that he knew or reasonably should have known would cause Officers Baldridge and Camp to deprive Plaintiff of his constitutional rights. Thus, for this additional reason, Plaintiff's supervisory liability claim fails. Woodson, 2021 WL 1300596, at *15; Starr, 2021 WL 826248, at *2; Steele, 2017 WL 1208668, at *4.
3. State of Mind
A plaintiff can establish the required state of mind by showing that the supervisor acted with deliberate indifference. See Perry v. Durborow, 892 F.3d 1116, 1122 (10th Cir. 2018). An official acts with deliberate indifference if their “conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights.” Berry v. City of Muskogee, 900 F.2d 1489, 1496 (10th Cir. 1990) Deliberate indifference does not require a finding of express intent to harm. Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, to allege deliberate indifference, a Plaintiff must allege: (1) that the defendant was “‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]'; (2) that he actually drew that inference; and (3) that he was ‘aware of and fail[ed] to take reasonable steps to alleviate that risk.'” Perry, 892 F.3d at 1122 (quoting Keith v. Koerner, 843 F.3d 833, 848 (10th Cir. 2016)).
Plaintiff alleges:
[Defendant Jaques] knew of the problem with the practice, policy or custom which [Officers Baldridge and Camp] used to intentionally [and] sadistically cause the pain[,] injuries[,] and suffering of the Plaintiff on January 24, 2021. Defendant [Jaques] failed to correct and supervise any change in the policy[,] practice[,] or custom which resulted in the injuries and damage to the Plaintiff's person.[#11 at 10] This, however, is another formulaic recitation of the elements of a cause of action insufficient to state a plausible claim that Defendant acted with deliberate indifference. Plaintiff does not allege any facts-for example, prior instances of the application of the purported policy that had been reported to Defendant-from which Defendant could have drawn the inference that a substantial risk of harm existed. Nor does Plaintiff allege facts sufficient to support the inference that Defendant actually drew that inference. Plaintiff further alleges that "the defendants had substantial actual knowledge that the policy, practice, or custom would subject the Plaintiff to the [ex]cessive risk in which [Officers Baldridge and Camp] maliciously and sadistically caused harm to the Plaintiff” [id.], but this is again mere recitation of the elements without factual support. Nowhere in the Complaint does Plaintiff allege facts sufficient to draw the reasonable inference that Defendant was aware that a substantial risk of serious harm existed or that he failed to take reasonable steps to alleviate that risk.
Because Plaintiff has failed to plausibly allege a claim that Defendant had individual or supervisory liability for Plaintiff's injuries, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent that it seeks dismissal of Plaintiff's claims against Defendant in his individual capacity and that those claims be DISMISSED WITHOUT PREJUDICE. See 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”).
V. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) & 12(b)(6) [#29] be GRANTED and that Plaintiff's Amended Complaint be DISMISSED WITHOUT PREJUDICE. If this Recommendation is adopted, the Court further RECOMMENDS that Plaintiff be granted leave to file a Second Amended Complaint within 21 days of the Order Adopting this Recommendation and that Plaintiff be instructed that his failure to do so will result in the dismissal of this action against Defendant Jaques.
The Court has granted Plaintiff an extension until December 12, 2022 to serve Defendants Baldridge and Camp. [#73]
Additionally, the Court ORDERS that the Clerk of Court shall correct the spelling of Jesse Baldridge and Terry Jaques in the case caption.