Guion v. Spurlock et al

Filing 89

ORDER adopting and approving 78 Report and Recommendations, and granting in part and denying in part 40 Partial Motion to Dismiss, by Judge Lewis T. Babcock on 1/29/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 14-cv-00391-LTB-MEH
CURTIS GUION,
Plaintiff,
v.
SPURLOCK, Correctional Officer, in his official and individual capacities,
GILBERT, Correctional Officer, in his official and individual capacities,
CUTCHER, Sergeant, in his official and individual capacities,
GROOMS, Correctional Officer, in his official and individual capacities,
Z. MAHER, Correctional Officer, in his official and individual capacities,
WHITE, Correctional Officer, in his official and individual capacities,
BARBERO, Captain, in his official and individual capacities,
TRAVIS TRANI, Warden, in his official and individual capacities,
BROWN, Correctional Officer, in his official and individual capacities,
P. ARCHULETA, Correctional Officer, in his official and individual capacities,
MONTOYA, Correctional Officer, in his official and individual capacities,
MORRIS, in his official and individual capacities,
BENSKO, Correctional Officer, in his official and individual capacities,
D. RAYMOND, Sergeant, in his official and individual capacities,
S. FOSTER, Associate Warden, in his official and individual capacities,
SOLANO, Correctional Officer, in his official and individual capacities,
J.R. ADAMS, Correctional Officer, in his official and individual capacities,
BUTERO, Sergeant, in his official and individual capacities,
MAHONEY, Correctional Officer, in his official and individual capacities,
Defendants.
________________________________________________________________________
ORDER
________________________________________________________________________

This case is before me on the Recommendation of the Magistrate Judge that the
Partial Motion to Dismiss filed August 4, 2014 (Doc 40) by Defendants Spurlock, Gilbert,
Maher, White, Barbero, Trani, Brown, Archuleta, Montoya, Morris, Raymond, Foster,
Solano, Adams, Butero, and Mahoney, and joined by Defendants Bensko, Cutcher, T.

Trujillo, and Grooms (Doc 63 and Doc 75) be granted in part and denied in part.
Specifically the Magistrate Judge recommends that Plaintiff’s claims for monetary damages
against the official capacity Defendants be dismissed while his claims for prospective
injunctive relief against Defendants in their official capacities remain so long as they state
plausible claims for relief. The Magistrate Judge further recommends that I find Plaintiff
has not sufficiently alleged the personal participation of Defendants Gilbert, Mahoney,
Archuleta, Adams, Spurlock, Witz, Cutcher, Grooms, White, Casady, and Maher in his
failure to protect claim. Next, the Magistrate Judge recommends denying the portion of the
Motion seeking dismissal of Claim Two against Defendants Solano and Brown. The
Magistrate Judge further recommends denying the portion of the Defendants’ motion
seeking dismissal of Defendant Foster for failure to allege personal participation. And
further, the Magistrate Judge recommends denying the portion of Defendants’ motion
seeking dismissal of Claim Four for failure to state a retaliation claim and that Defendant
Foster is not entitled to qualified immunity. The Magistrate Judge recommends that I find
Plaintiff has failed to sufficiently allege Defendants Raymond, Trujillo, and Barbero
personally participated in the excessive use of force claim. The Magistrate Judge next
recommends that I dismiss Plaintiff’s Sixth Claim as moot.
The Magistrate Judge in support of these recommendations concludes as follows:
(1)

Claim One fails to plausibly allege the personal participation of Defendants
Gilbert, Mahoney, Archuleta, Adams, Spurlock, Witz, Cutcher, Grooms,
White, Casady, and Maher and that Claim One should be dismissed against
these Defendants.

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(2)

Claim Two plausibly alleges the personal participation of Defendants Solano
and Brown.

(3)

Claim Four plausibly alleges the personal participation of Defendant Foster
and plausibly alleges a First Amendment retaliation claim.

(4)

Claim Five fails to plausibly allege the personal participation of Defendants
Raymond, Trujillo, and Barbero and should be dismissed against these
Defendants.

(5)

Claim Six is moot.

Plaintiff has filed “Plaintiff’s Response Motion to Defendants’ Motion to Dismiss and
Magistrate Recommendations Reconsideration” (Doc 83). I construe this document as
objections to the Magistrate Judge’s recommendations. By Minute Order (Doc 84), I gave
the Defendants to and including January 19, 2015 to respond to Doc 83. The Defendants
have filed no response. In view of Plaintiff’s filing (Doc 83), I have reviewed the Magistrate
Judge’s recommendation de novo.

On de novo review, I conclude that the

recommendations are correct. Accordingly,
IT IS ORDERED as follows:
1.

Plaintiff’s claims for monetary damages against the official capacity
Defendants are DISMISSED while his claims for prospective injunctive relief
against Defendants in their official capacities remains so long as they stay
plausible claims for relief.

2.

Because Plaintiff has not sufficiently alleged personal participation of
Defendants Gilbert, Mahoney, Archuleta, Adams, Spurlock, Witz, Cutcher,
Grooms, White, Casady, and Maher in his failure to protect claim, his claim
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against these Defendants is DISMISSED.
3.

I deny the portion of the pending motion seeking dismissal of Claim Two
against Defendants Solano and Brown.

4.

I deny the portion of the Defendants’ motion seeking dismissal of Defendant
Foster for failure to allege his personal participation.

5.

I deny the portion of Defendants’ motion seeking dismissal of Claim Four for
failure to state a retaliation claim and I find that Defendant Foster is not
entitled to qualified immunity on Plaintiff’s First Amendment retaliation claim.

6.

Plaintiff has failed to sufficiently allege Defendants Raymond, Trujillo, and
Barbero’s personal participation in the excessive use of force claim and the
claim is DISMISSED as against these Defendants.

7.

I DISMISS Plaintiff’s Sixth Amendment claim as MOOT.

And in conclusion,
1.

Claim One is DISMISSED against Defendants Gilbert, Mahoney, Archuleta,
Adams, Spurlock, Witz, Cutcher, Grooms, White, Casady, and Maher.

2.

The Motion is DENIED as to Claim Two insofar as it alleges the personal
participation of Defendants Solano and Brown.

3.

Claim Four plausibly alleges the personal participation of Defendant Foster
as to Plaintiff’s First Amendment retaliation claim and the motion is DENIED
in this respect.

4.

Claim Five fails to plausibly allege the personal participation of Defendants
Raymond, Trujillo, and Barbero and is DISMISSED against these
Defendants.
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5.

Claim Six is DISMISSED AS MOOT.

Finally, as set forth in the Recommendations of the Magistrate Judge as adopted
and approved in this Order, the Motion (Doc 40) is GRANTED IN PART AND DENIED IN
PART.

BY THE COURT:

s/Lewis T. Babcock
Lewis T. Babcock, Judge
DATED:

January 29, 2015

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