Salazar v. Maketa et al

Filing 34

ORDER ON RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 32 . Defendants Objection to Recommendation of United States Magistrate Judge 33 is OVERRULED; The Recommendation of United States Magistrate Judge 32 is ADOPTED as an order of this Court; and Defendants Motion to Dismiss Plaintiffs Amended Complaint 29 is DENIED, by Judge Raymond P. Moore on 10/05/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02081-RM-CBS
GARY SALAZAR,
Plaintiff,
v.
DEPUTY WHITE, individually,
Defendant.
______________________________________________________________________________
ORDER ON
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (ECF NO. 32)
______________________________________________________________________________
THIS MATTER is before the Court on the July 7, 2015, Recommendation of United
States Magistrate Judge Craig B. Shaffer (the “Recommendation”) (ECF No. 32), recommending
that Defendant White’s Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion”) (ECF
No. 29) be denied. Defendant timely filed his Objection to Recommendation of United States
Magistrate Judge (the “Objection”) (ECF No. 33), to which Plaintiff filed no response. For the
reasons stated below, the Court OVERRULES the Objection, ADOPTS the Recommendation,
and DENIES the Motion.
I.

STATEMENT OF THE CASE
No party objects to the Magistrate Judge’s recitation of the statement of the case.

Accordingly, the Court adopts and incorporates the statement of the case included within the
Recommendation as if set forth herein. (ECF No. 32, pages 1-2.)

II.

PLAINTIFF’S CLAIM
Plaintiff alleges he was subjected to excessive force by Defendant and others while an

inmate held at the El Paso County Criminal Justice Center (“CJC”) on a state parole hold.
Plaintiff alleges that Defendant, and others, savagely and maliciously beat and kicked him,
especially when he was handcuffed. Meanwhile, other unnamed defendants watched and did
nothing. The specific allegations are as follows.
In May or June 2014, while at the CJC, a response team of about 10 members came to
Plaintiff’s cell to move everyone in the pod in order to perform maintenance on the pod.
Defendant asked Plaintiff to place his hands on his head and interlace his fingers, but Plaintiff
told Defendant he did not think he could because of a previous shoulder injury. Defendant then
asked Plaintiff to spread his legs, and Plaintiff did as much as he could, but Defendant became
angry and began to yell. The other response team members also started yelling at Plaintiff,
telling him to get on his knees. Plaintiff told them he could not due to a previous back injury. At
that point, Defendant and others began attacking him.
According to Plaintiff, he was attacked twice. First, while Plaintiff was at his cell,
Defendant White – along with response team members “one, two, three and four” – threw
Plaintiff on the floor. Despite the fact that Plaintiff was not resisting, Defendant White (and the
other four team members) began punching him. While on the floor, one of the five team
members handcuffed Plaintiff’s hand behind his back, while one or more of the others continued
to punch him. Then, one or more of the five team members began kicking him. Thereafter,
Defendant and team member one picked Plaintiff up and took him to the jail intake area.

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At the intake area, Plaintiff was attacked again. Defendant and team member one again
told Plaintiff to get on his knees. Once again Plaintiff could not, so Defendant and team member
one began attacking Plaintiff. Plaintiff was thrown on the floor, and Defendant and team
member one punched him and laid on top of him so he could not breathe. Another team member
punched Plaintiff in the face and his nose began to bleed profusely. All the while, Plaintiff was
handcuffed.
As a result of Defendant’s alleged attacks, Plaintiff contends he suffers “terrible pain”
and numbness in his left arm and shoulder area, and from his back giving out without warning
which causes him to fall on the floor in extreme pain. Plaintiff asserts Defendant caused serious
permanent injury, chronic severe pain, loss of enjoyment of life, and loss of bodily function.
Plaintiff seeks relief under the Eighth Amendment and Fourteenth Amendment.
III.

LEGAL STANDARDS
A.

Review of the Magistrate Judge’s Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule
of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of
the magistrate judge’s [recommendation] that has been properly objected to.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil
Procedure and specific enough to enable the “district judge to focus attention on those issues –
factual and legal – that are at the heart of the parties’ dispute.” United States v. 2121 E. 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the
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absence of a timely and specific objection, “the district court may review a magistrate’s report
under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no
timely objection is filed, the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
B.

Motions to Dismiss

Defendant moved to dismiss under Rules 12(b)(1) and 12(b)(6) but, based on the
Objection, only Rule 12(b)(6) is now at issue. Pursuant to Rule 12(b)(6), a complaint must be
dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .” Id.
at 555 (internal citations and brackets omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Id. “[A] plaintiff must ‘nudge [ ] [his] claims across
the line from conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the
mere metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (internal citation and quotation
omitted; italics in original).

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For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all
well-pled factual allegations in the complaint as true and resolve all reasonable inferences in the
plaintiff’s favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir.
1998); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996). However, “when legal
conclusions are involved in the complaint ‘the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to [those] conclusions’ . . . .” Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)) (brackets in original).
In this case, Plaintiff did not file a response to the Motion. “[A] district court may not,
[however,] grant a motion to dismiss for failure to state a claim merely because a party failed to
file a response.” Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation
marks, alteration, and citation omitted); Fournerat v. Wisconsin Law Review, 420 F. App’x 816,
819 (10th Cir. 2011). This is because the purpose of Rule 12(b)(6) motions is to test “‘the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.’” Issa, 354 F.3d at 1177 (quoting Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir.1994)). “Consequently, even if a plaintiff does not file a response to a motion to
dismiss for failure to state a claim, the district court must still examine the allegations in the
plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can
be granted.” Issa, 354 F.3d at 1178; Fournerat, 420 F. App’x at 819.
C.

Plaintiff’s Pro Se Status

Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and
other filings liberally and holds them to a less stringent standard than those drafted by
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attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A court may not assume
that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997) (stating a court may not construct a legal theory on plaintiff’s behalf)
(citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a
court may not construct arguments or theories for the plaintiff in the absence of any discussion of
those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of
different civil procedure rules. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991.
IV.

ANALYSIS
In his Motion, Defendant argued Plaintiff failed to state a claim under the Fourteenth

Amendment, Defendant is entitled to qualified immunity, and the Court lacks subject matter
jurisdiction over any state law claim. The Recommendation found: (1) Plaintiff did not advocate
any state law claims, and the Magistrate Judge perceived none; and (2) Plaintiff’s claims are to
be addressed under the Fourteenth Amendment, the law was clearly established that a reasonable
person in Defendant’s position would have known that the use of violent physical force on a
pretrial detainee who is not resisting and restrained in handcuffs would violate that person’s
Fourteenth Amendment rights, and the objective standard announced in Kingsley v. Hendrickson,
__ U.S. __, 135 S. Ct. 2466 (2015) applied. Defendant objects to the Recommendation, arguing
it fails to fully consider: (1) Plaintiff’s burden; and (2) the alleged facts as applied to Defendant’s
qualified immunity defense.
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First, as no objection was filed to the finding that no state law claims were alleged, and
that Plaintiff’s claims are to be evaluated under the Fourteenth Amendment, the Court adopts the
Recommendation as to such findings and conclusions.
Next, as to Plaintiff’s burden, generally, when a defendant asserts qualified immunity, the
plaintiff must show (1) that the defendant’s actions violated a federal constitutional or statutory
right; and (2) that the right was clearly established at the time of the defendant’s unlawful
conduct. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). “To determine
whether the right was clearly established, we ask whether ‘the contours of a right are sufficiently
clear that every reasonable official would have understood that what he is doing violates that
right.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011)). Defendant argues Plaintiff has
not shown what clearly established law Defendant has violated, and that Defendant is “unaware
of any case law constitutionally prohibiting a deputy sheriff from using force when an inmate
refuses to follow instructions during a volatile situation such as an inmate move.” (ECF No. 33,
page 4.) Defendant’s argument, however, is unavailing.
As stated, although Plaintiff did not respond to the Motion, the Court is not required to
grant relief simply because it was requested. Moreover, the allegations, coupled with the
relevant legal authorities,1 support the conclusion that Plaintiff’s allegations are sufficient to
meet his burden. Contrary to Defendant’s assertion, Plaintiff did not refuse to follow instructions
– the allegations are that he was physically unable to comply, due to his physical limitations of
which he advised Defendant. Moreover, the question is not whether Defendant was prohibited
from any using any force but, rather, whether he was prohibited from using excessive force.

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Case law which Defendant even cited.
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The Magistrate Judge found – and the Court agrees – the law was clearly established such
that a reasonable person in Defendant’s position would have known that the use of violent
physical force on a pretrial detainee who is not resisting and is handcuffed would violate that
person’s Fourteenth Amendment rights. See Estate of Booker, 745 F.3d at 412-414, 428
(Agreeing with the Sixth Circuit’s analysis that “‘there undoubtedly is a clearly established legal
norm’ precluding the use of violent physical force against a criminal suspect or detainee ‘who
already has been subdued and does not present a danger to himself or others.’”) (quoting Harris
v. City of Circleville, 583 F.3d 356, 367 (6th Cir.2009)); cf. Ali v. Dinwiddie, 437 F. App’x 695,
699 (10th Cir. 2011) (In context of the Eighth Amendment, Tenth Circuit agreed plaintiff’s claim
that the officer “‘punched him with a force that sent him reeling into the wall and onto the floor,
and then repeatedly kicked and punched him in the head and back—even after he was
handcuffed’ was sufficient to create a genuine dispute of material fact concerning the use of
excessive force.”). In addition, it bears noting that Plaintiff’s allegations are that he was on the
floor – after being thrown there by Defendant – at the time he was attacked by Defendant. See
Estate of Booker, 745 F.3d at 424 (“[I]t was ‘clearly established that putting substantial or
significant pressure on a suspect’s back while that suspect is in a face-down prone position after
being subdued and/or incapacitated constitutes excessive force.’”) (quoting Weigel v. Broad, 544
F.3d 1143, 1155 (10th Cir. 2008)). That there is no case with this exact fact pattern is of no
moment – after all, that is not the standard. “‘The plaintiff is not required to show ... that the
very act in question previously was held unlawful … to establish an absence of qualified
immunity.’” Estate of Booker, 745 F.3d at 411 (quoting Weigel, 544 F.3d at 1153). Were it
otherwise, “a requirement of a case directly on point would quickly transform the qualified
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immunity standard into an absolute immunity standard in the vast majority of cases.” Roska v.
Peterson, 328 F.3d 1230, 1248 n.16 (10th Cir. 2003).
Finally, as to the sufficiency of Plaintiff’s allegations, Defendant argues that the “new
‘objective reasonableness’” standard under Kingsley, supra, announced in 2015 was not clearly
established at the time of the alleged incident in 2014. Instead, Defendant contends the
subjective reasonable standard applies and Plaintiff has failed to sufficiently allege facts to meet
this standard. The Court agrees that the “motives of the state actor” (what Defendant refers to as
“subjective reasonableness component”) requirement set forth in Estate of Booker, 745 F.3d at
426, should be considered to evaluate Defendant’s conduct which allegedly occurred in 2014.2
The Court finds, however, that Plaintiff has sufficiently alleged facts to meet this requirement.3
The subjective intent standard for an excessive force due process violation has been
described as “‘force inspired by unwise, excessive zeal amounting to an abuse of official power
that shocks the conscience, or by malice rather than mere carelessness.’” Estate of Booker, 745
F.3d at 46 (quoting Hannula v. City of Lakewood, 907 F.2d 129, 132 (10th Cir. 1990), abrogated
in part by Graham v. Connor, 490 U.S. 386, 394-95 (1989)). In this case, Plaintiff’s allegations
that Defendant attacked Plaintiff, threw him on the ground, “savagely and maliciously beat and
kicked” him, while he was in handcuffs and not resisting are sufficient to support that the force
was inspired by malice or excessive zeal that shocks the conscience.
Defendant argues that prohibiting the use of force under the facts and circumstances
alleged here would render the terms of C.R.S. § 18-1-703(1)(b) “useless when inmates engage in
civil disobedience.” “[T]he presence of a statute is not relevant to the question of whether the
2
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The Recommendation does not specifically mention the consideration of this factor.
In light of the Court’s determination, it need not address the possible implications of Kingsley.
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law is ‘clearly established.’” Roska, 328 F.3d at 1252-53 (emphasis in original). The Court
may, however, consider whether reliance on the statute rendered an officer’s conduct
“objectively reasonable.” Id. at 1253. The section Defendant relies upon allows the use of
“reasonable and appropriate physical force” to maintain order and discipline. Under the facts as
alleged, however, the statute’s provisions are insufficient to support the conclusion that
Defendant’s conduct was “objectively reasonable.”
V.

CONCLUSION
Based on the foregoing, and as stated herein, the Court ORDERS as follows:
(1) Defendant’s Objection to Recommendation of United States Magistrate Judge (ECF
No. 33) is OVERRULED;
(2) The Recommendation of United States Magistrate Judge (ECF No. 32) is ADOPTED
as an order of this Court; and
(3) Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (ECF No. 29) is
DENIED.
DATED this 5th day of October, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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