Medina v. Denver Parole Office et al
Filing
55
MEMORANDUM OPINION AND ORDER granting 36 Motion to Dismiss; and denying 27 Motion for Order, by Magistrate Judge Craig B. Shaffer on 1/8/16. (Attachments: # 1 Attachment to Order)(nmarb, )
Chick v. Boulton, Not Reported in F.Supp.2d (2006)
2006 WL 581166
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Guy CHICK, Plaintiff,
v.
Timithi BOULTON, parole officer David
Gallegos, Aurora Police Department, and Mike
Gaskill, Aurora Police Department, Defendants.
No. 05 CV 00052 REB PAC.
|
March 7, 2006.
Attorneys and Law Firms
Guy Chick, Canon City, CO, pro se.
Alisha M. Burris, Colorado Department of Law, David
J. Bruno, Bruno, Bruno & Colin, P.C., Denver, CO, for
Defendants.
ORDER CONCERNING DEFENDANT
BOULTON'S MOTION TO DISMISS
BLACKBURN, J.
*1 This matter is before me on defendant Timithi Boulton's
Motion to Dismiss [# 33], filed August 1, 2005. Plaintiff
filed his pro se response [# 41] to the motion on August 24,
2005, and defendant filed his reply [# 42] on September 6,
2005. This motion was referred to the magistrate judge in my
general order of reference [# 17], filed May 27, 2005. In an
effort to streamline the resolution of this motion, and with the
consent of the magistrate judge, I will withdraw my order of
reference as to this motion only. For the reasons discussed
below, I deny the motion to dismiss. 1
1
The issues raised by and inherent to the motion to dismiss
are fully briefed, obviating the necessity of jurisdictional
discovery, evidentiary hearing, or oral argument.
II. STANDARD OF REVIEW
When ruling on a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), I must determine whether the allegations set forth in
the complaint, if true, are sufficient to state a claim within the
meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded
allegations of the complaint as true. McDonald v. Kinder–
Morgan, Inc., 287 F.3d 992, 997 (10 th Cir.2002). “However,
conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss.” Fernandez–Montes v. Allied Pilots Association, 987
F.2d 278, 284 (5 th Cir.1993); see also Ruiz v. McDonnell,
299 F.3d 1173, 1181 (10 th Cir.2002) (“All well-pleaded
facts, as distinguished from conclusory allegations, must
be taken as true.”), cert denied, 538 U.S. 999, 123 S.Ct.
1908, 155 L.Ed.2d 826 (2003). Thus, Rule 12(b)(6) requires
dismissal if, taking all well-pleaded facts as true and
construing them in the light most favorable to plaintiff, it is
clear that he can prove no set of facts entitling him to relief.
See Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957); Rocky Mountain Helicopters, Inc., v. Bell
Helicopter Textron, Inc., 24 F.3d 125, 128 (10 th Cir.1994).
Pro se pleadings are to be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d
652 (1972). A pro se litigant should be given a reasonable
opportunity to remedy defects in his pleadings if his factual
allegations are close to stating a claim for relief. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10 th Cir.1991). However, a
pro se litigant's “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which
relief can be granted.” Id. A court will not construct legal
theories which assume facts that have not been pleaded, Dunn
v. White, 880 F.2d 1188, 1197 (10 th Cir.1989), nor is the
court obligated to “supply additional factual allegations to
round out a plaintiff's complaint.” Whitney v. New Mexico,
113 F.3d 1170, 1173–74 (10 th Cir.1997).
III. BACKGROUND
I. JURISDICTION
I have subject matter jurisdiction under 28 U.S.C. 1331
(federal question).
The complaint addressed by the motion to dismiss is the
plaintiff's amended complaint [# 14], filed May 19, 2005
(Complaint). The plaintiff, Guy Chick, asserts four claims for
relief based on events that occurred during his arrest by the
defendants on October 1, 2004. Defendant, Timithi Boulton,
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1
Chick v. Boulton, Not Reported in F.Supp.2d (2006)
is a parole officer and was Chick's parole officer at the time of
Chick's arrest. Defendants Mike Gaskill and David Gallegos,
are officers with the Aurora Police Department who assisted
in Chick's arrest on October 1, 2004. Chick says he was in his
apartment watching television with his niece when he heard a
knock on the door. Complaint, p. 4. He says he did not answer
the door because it was 11:30 at night. Id. A short time later,
the defendants forced open the door to Chick's apartment,
entered, and arrested him.
*2 Chick's four claims are: 1) unlawful entry into plaintiff's
home by the defendants; 2) excessive force by Officer
Gaskill when he used his taser on plaintiff three times
during the course of plaintiff's arrest; 3) police brutality by
Officer Gallegos “when he went ‘hands on’ with plaintiff,”
apparently when plaintiff was unconscious from a taser shot;
and 4) loss of wages resulting from plaintiff's loss of his
employment as a restaurant manager due to his arrest and
imprisonment. Complaint, pp. 4—7. Chick names Boulton as
a defendant in claims one and four.
In his motion to dismiss, Boulton argues 1) that plaintiff's
claims are barred because he has failed to exhaust his
administrative remedies; 2) that Boulton is entitled to
qualified immunity on claims against him in his individual
capacity; 3) that any official capacity claims plaintiff asserts
are barred; 4) that plaintiff fails to state a claim for violation of
any Fourth Amendment rights; and 5) that plaintiff's claim for
lost wages is barred by Heck v. Humphrey, 512 U.S. 477, 114
S.Ct. 2364, 129 L.Ed.2d 383 (1994). The other defendants,
Aurora Police Department Officers Gaskill and Gallegos,
filed their answer to the complaint on August 12, 2005.
IV. EXHAUSTION OF REMEDIES
The Prison Litigation Reform Act (PLRA) states: “No action
shall be brought with respect to prison conditions under [42
U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correction facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). Chick was incarcerated in the Colorado
Department of Corrections when he filed this case. However,
his claims concern his arrest at his own home while he was
on parole. His claims do not concern prison conditions, and
thus are not “brought with respect to prison conditions under
section 1983” or any other law. Therefore, the exhaustion
requirement of § 1997e(a) is not applicable to this case.
V. FOURTH AMENDMENT CLAIM—CLAIM ONE
In claim one, Chick asserts a claim for unlawful entry.
He claims that the defendants' forcible entry into his home
violated his rights under the Fourth Amendment. The Fourth
Amendment is applicable to the state of Colorado under the
Due Process Clause of the Fourteenth Amendment. See, e.g.,
Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961).
The Fourth Amendment provides protection from
unreasonable searches and seizures. In many circumstances,
law enforcement must obtain a warrant prior to entering
a home and conducting a search. However, parolees do
not enjoy “the absolute liberty to which every citizen is
entitled, but only ... conditional liberty properly dependent
on observance of special parole restrictions.” Morrissey v.
Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d
484 (1982). “These restrictions are designed to ensure
rehabilitation and protect the public. These twin aims justify
the state's limitation of a parolee's Fourth Amendment
rights and consequent expectations of privacy.” U.S. v.
Lewis, 71 F.3d 358, 361 (10th Cir.1995). The United States
Supreme Court has recognized exceptions to the warrant
requirement when special needs, beyond the normal need
for law enforcement, make the warrant and probable-cause
requirement impracticable. Lewis, 71 F.3d at 361. A state's
parole system presents such special needs. Id.
*3 To ensure adequate monitoring of a parolee's progress,
and to deter further criminal conduct, a parole agent must
be permitted, in proper circumstances, to act expeditiously
and without warning. Id. at 362. To determine the lawfulness
of the warrantless entry and search at issue here, I must
balance the parolee's expectations of privacy against the
state's interests to determine the level of individualized
suspicion necessary to support a warrantless search. Id. I
must look to Colorado law to determine whether the “special
needs” of its parole system justify the warrantless entry
into Chick's home. Id. The entry is reasonable under the
Fourth Amendment if parole agents carried it out pursuant
to state law which itself satisfies the Fourth Amendment's
reasonableness requirement. Id.
In Colorado, parolees are required, as a condition of parole, to
allow parole officers to make residential visits and to search
that residence. § 17–2–201(5)(f)(I)(D), C.R.S. (2004). Since
the state statute authorizes searches of a parolee's residence as
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2
Chick v. Boulton, Not Reported in F.Supp.2d (2006)
a condition of parole, a parole officer needs only reasonable
suspicion that the parolee has committed or is committing
a parole violation or crime. People v. Tafoya, 985 P.2d
26, 29 (Colo.App.1999). This parole officer authority serves
legitimate needs of the state parole system.
Again, Chick says he was in his apartment watching
television with his niece when he heard a knock on the door.
Complaint, p. 4. He says he did not answer the door because
it was 11:30 at night. Id. A short time later, the defendants
forced open the door to Chick's apartment, entered, and
arrested him. Boulton argues that, hearing noises in Chick's
residence but finding that no one answered the door after
the defendants knocked on the door, it was reasonable for
Boulton to suspect that Chick was avoiding a residential visit
and search by his parole officer. Motion to dismiss, p. 6. Such
avoidance, Boulton argues, supports a reasonable suspicion
that Chick was avoiding the visit and/or search because he
was committing other parole violations. Id.
Boulton's relies on his assertion that he heard noises in
Chick's apartment to support his claim that he had a
reasonable suspicion that Chick was in the apartment and was
avoiding a residential visit and search by his parole officer.
I note, however, that Chick's complaint does not contain
any allegations that indicate that Boulton heard noises in
the apartment, or otherwise could observe indications that
someone was in the apartment. Boulton's claim that he heard
noises in the apartment is a factual assertion not contained in
the Complaint. Unlike a motion for summary judgment, I may
not rely on such a factual assertion in resolving the motion
to dismiss.
Assuming the allegations in the Complaint to be true, and
reading those allegations in the light most favorable to the
plaintiff, I cannot conclude that Boulton necessarily had
reasonable suspicion sufficient to support the warrantless
entry into Chick's apartment. Chick's allegations state a claim
for violation of his Fourth and Fourteenth Amendment rights
based on Boulton's warrantless entry into Chick's apartment
to effect Chick's arrest. Boulton's motion to dismiss Chick's
claim one will be denied.
result of his incarceration, Chick alleges, he lost his job. Chick
says he was paid 24,000 dollars per year. In his prayer for
relief, he seeks 16,000 dollars in lost wages, beginning on the
date of his arrest, October 1, 2004. The Complaint was signed
on May 16, 2005, while Chick was incarcerated at Arapahoe
County Detention Facility. These allegations indicate that
Chick was incarcerated continuously from the date of his
arrest until the filing of his Complaint. Chick's current address
of record is at the Skyline Correctional Facility, indicating he
remains incarcerated.
Boulton argues that Chick's claim for damages arising from
his allegedly unlawful arrest is barred by Heck v. Humphrey,
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In
Heck, the United States Supreme Court held that
in order to recover damages
for ... harm caused by actions
whose unlawfulness would render
a conviction or sentence invalid, a
§ 1983 plaintiff must prove that
the conviction or sentence has been
reversed on direct appeal, expunged by
executive order, declared invalid by a
state tribunal authorized to make such
determination, or called into question
by a federal court's issuance of a writ
of habeas corpus.
512 U.S. at 486–87. “[W]hen a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487.
VI. CLAIM FOUR—LOST WAGES
On the current record, I cannot conclude that a judgment in
favor of Chick on his claim that his arrest was unlawful would
“necessarily imply the invalidity of [Chick's] conviction
or sentence.” Id. The nature of Chick's apparent criminal
conviction, the status of his sentence, and his parole status
are not clear on the current record. It is difficult to imagine
a scenario in which a judgment in Chick's favor in this case
would invalidate his conviction. The effect of a judgment in
Chick's favor on Chick's sentence also is far from clear.
*4 In claim four Chick asserts a claim for lost wages.
He alleges that he was arrested on illegal grounds and was
incarcerated in the Arapahoe County Detention Facility. As a
In short, assuming the allegations in the Complaint to be true,
and reading those allegations in the light most favorable to the
plaintiff, I cannot conclude that Chick's claim four is barred
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Chick v. Boulton, Not Reported in F.Supp.2d (2006)
by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994).
VII. QUALIFIED IMMUNITY
To the extent Chick intends to sue Boulton in his individual
capacity, Boulton argues that Chick's claims are barred by the
doctrine of qualified immunity. Qualified immunity shields
public officials from civil damages liability if their actions did
not “ ‘violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” ’
Pino v. Higgs, 75 F.3d 1461, 1467 (10 th Cir.1996) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982)).
*5 Once a defendant government official raises the
defense of qualified immunity, the burden shifts to the
plaintiff. Harris v. Morales, 69 F.Supp.2d 1319, 1322
–1323 (D.Colo.1999) (discussing the plaintiff's pleading
requirements in light of a motion to dismiss based on qualified
immunity defense). “The plaintiff initially bears a heavy
two-part burden when the defendant pleads the defense of
qualified immunity.” Id. (quoting Mick v. Brewer, 76 F.3d
1127, 1134 (10 th Cir.1996) (citations omitted). First, the
plaintiff must demonstrate the individual defendant's conduct
violated the law. This burden means coming forward with
specific facts establishing the violation. Id. (citing Taylor v.
Meacham, 82 F.3d 1556, 1559 (10 th Cir.1996). Second, the
plaintiff must prove the relevant law was clearly established
when the alleged violation occurred. Id. In other words, the
plaintiff must demonstrate that the right is sufficiently clear
so that a reasonable state official would be aware that his
behavior violates that right. Id. (citations omitted). However,
the plaintiff need not establish a “precise correlation between
the then-existing law and the case at hand.” Patrick v. Miller,
953 F.2d 1240, 1249 (10 th Cir.1992).
“Once a defendant raises the defense of qualified immunity
in the context of a motion to dismiss, a court must first
determine whether the plaintiff has asserted a violation of
federal law.” Currier v. Doran, 242 F.3d 905, 917 (10th
Cir.), cert. denied, 534 U.S. 1019 (2001). The Court must
consider whether the facts alleged, “[t]aken in the light most
favorable to the party asserting the injury, ... show the officer's
conduct violated a constitutional right.” Saucier v. Katz, 533
U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
As discussed above, viewing Chick's allegations in the light
most favorable to Chick, he has asserted an arguable claim
that Boulton violated Chick's Fourth Amendment rights when
Boulton entered Chick's apartment. In the context of a motion
to dismiss, this satisfies the first part of Chick's burden in
response to Boulton's assertion of qualified immunity.
Second, Chick must demonstrate that the relevant law was
clearly established when the violation occurred. In this case,
the alleged violation occurred on October 1, 2004. The
cases discussed above concerning a parolee's rights under
the Fourth and Fourteenth Amendments all pre-date Chick's
arrest by a substantial period of time. Morrissey v. Brewer,
408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1982);
U.S. v. Lewis, 71 F.3d 358, 361 (10th Cir.1995); People v.
Tafoya, 985 P.2d 26, 29 (Colo.App.1999). This law, and
other well-established Fourth Amendment law, constitutes
clearly established law. Reading Chick's allegations in the
light most favorable to Chick, and excluding consideration
of other factual assertions, Chick's allegations are sufficient
to state a claim for violation of this clearly established law.
This satisfies the second part of Chick's burden in response to
Boulton's assertion of qualified immunity.
*6 On the current record, Boulton is not yet entitled to
dismissal of Chick's Complaint based on qualified immunity.
VIII. SOVEREIGN IMMUNITY
To the extent Chick intends to sue Boulton for damages in
his official capacity, Boulton argues that Chick's claims are
barred by the Eleventh Amendment. In his request for relief,
Chick seeks an award of actual and punitive damages against
Boulton. Complaint, p. 8. Chick does not seek relief other than
damages.
A claim against an official of the state of Colorado in his
official capacity is construed as a claim against the State of
Colorado. “(A)n official-capacity suit against a state officer
is not a suit against the official but rather is a suit against
the official's office. As such it is no different from a suit
against the State itself.” Hafer v. Melo, 502 U.S. 21, 26,
112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citation and internal
quotations omitted). The Eleventh Amendment bars claims
against state officials in their official capacities for monetary
relief and for equitable relief to remedy past wrongs. See
Kentucky v. Graham, 473 U.S. 159, 166—168, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985); Will v. Michigan Department
of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
4
Chick v. Boulton, Not Reported in F.Supp.2d (2006)
45 (1989) (holding that state officials acting in their official
capacities are not “persons” subject to suit under 42 U.S.C.
§ 1983).
To the extent Chick intends to sue Boulton in his
official capacity, Chick's claims are barred by the Eleventh
Amendment. Boulton's motion to dismiss Chick's claims
against Boulton in his official capacity will be granted.
IX. CONCLUSION & ORDERS
Taking the allegations in Chick's Complaint as true, and
construing them in the light most favorable to Chick, I
conclude that Chick's allegations are sufficient to state a
claim against Boulton under the Fourth and Fourteenth
Amendments, including a claim against Boulton for lost
wages. Further, on the current record and applying the
relevant standards outlined above, I find that qualified
immunity does not bar Chick's claims against Boulton. On the
End of Document
other hand, to the extent Chick asserts claims against Boulton
in Boulton's official capacity, those claims are barred by the
Eleventh Amendment.
THEREFORE, IT IS ORDERED as follows:
1. That my general order of reference in this case [# 17],
filed May 27, 2005, is WITHDRAWN as to defendant Timithi
Boulton's Motion to Dismiss [# 33], filed August 1, 2005;
2. That defendant Timithi Boulton's Motion to Dismiss [# 33],
filed August 1, 2005, is GRANTED as to the plaintiff's claims
against Boulton in his official capacity;
3. That defendant Timithi Boulton's Motion to Dismiss [# 33],
filed August 1, 2005, otherwise is DENIED;
All Citations
Not Reported in F.Supp.2d, 2006 WL 581166
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5
Harrell v. County of Nassau, Slip Copy (2013)
2013 WL 5439137
2013 WL 5439137
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Ronnie HARRELL, Plaintiff,
v.
COUNTY OF NASSAU, Nassau County Police
Department, Nassau County Police Officers
Joseph Lobello, John Tucker, Ralph Swanson,
Gary Farley and Regis Beneville, Defendants.
No. 10–CV–5894 (MKB).
|
Sept. 27, 2013.
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
*1 Plaintiff Ronnie Harrell brought the above-captioned
action against Defendants County of Nassau, Nassau County
Police Department, Nassau County Police Officers Joseph
Lobello, John Tucker, Ralph Swanson and Gary Farley, and
Ambulance Medical Technician Regis Beneville, alleging
false arrest, false imprisonment, malicious prosecution and
excessive force in violation of the Fourth and Fourteenth
Amendments of the United States Constitution, 42 U.S.C.
§ 1983 and “the laws and statutes of the State of New
York.”(Am.Compl.¶ 1.) Plaintiff also alleged claims of
negligence in hiring, training and supervising against Nassau
County and Nassau County Police Department, and claims of
negligence in the performance of their duties and intentional
and negligent infliction of emotional distress against all
Defendants. Plaintiff has since abandoned all of his claims
except his excessive force and intentional infliction of
emotional distress claims. Defendants moved for summary
judgment. The Court heard oral argument on August 6,
2013. For the reasons set forth below, Defendants' motion
for summary judgment is denied as to Plaintiff's claim
for excessive force and granted as to Plaintiff's claim for
intentional infliction of emotional distress.
I. Background
On September 19, 2009, Plaintiff and his friend Phillip Silver
attended a “barbecue backyard party” in Roosevelt, New
York, of approximately 75–100 people. (Pl. Dep. 17:10–
21:16; Pl. 50–h 51:24–52:14, 54:21–25. 1 ) When they arrived
at the party, Plaintiff stayed outside the front of the house
speaking on his cellular telephone and Silver went to the
back of the house. (Pl. Dep. 19:5–13; Pl. 50–h 5–12.)
While Plaintiff was having a conversation on the telephone,
Plaintiff's friend Jason drove by the house. (Pl.Dep.19:14–17,
22:6–24.) Jason stopped and spoke to Plaintiff. (Id. at 19:17–
19, 22:25–6.)Plaintiff heard individuals behind him arguing
about money while he was speaking with Jason. (Id. at
19:20–20:2, 23:7–24:25.)Plaintiff heard gunshots and started
running. (Id. at 24:23–25:11.)Plaintiff was shot and fell to
the concrete ground. (Id. at 19:13–27, 25:10–26:14.)Plaintiff
started to get up, and several people yelled at him not to move.
(Id. at 26:4–27:11.)Plaintiff fainted. (Id. at 31:7–12.)Plaintiff
testified during his deposition that, after being shot, he
“started going crazy,” but did not explain what he meant or
provide any details as to how he was “going crazy.” (Id. at
26:7–10.)
1
Plaintiff testified at a 50–h municipal hearing (“Pl.50–
h”) on April 23, 2010, and he was deposed (“Pl.Dep.”)
on March 9, 2012. A “50–h hearing” is an examination
provided for under New York General Municipal Law
§ 50–h. SeeN.Y. Gen. Mun. Law § 50h(1) (“Wherever
a notice of claim is filed against a ... county ... the ...
county ... shall have the right to demand an examination
of the claimant relative to the occurrence and extent of
the injuries or damages for which claim is made, ... which
examination shall be upon oral questions unless the
parties otherwise stipulate....”). A plaintiff's testimony
in a 50–h hearing may be considered by the Court on
a motion for summary judgment. See, e.g., Codling v.
City of New York, 68 F. App'x 227, 229 (2d Cir.2003)
(considering the plaintiff's testimony at his 50–h hearing
when analyzing the defendants' motion for summary
judgment); Decker v. City of New York, No. 13–CV–
0308, 2013 WL 4528531, at *3 (S.D.N.Y. Aug. 27, 2013)
(“The admissions in the [50–h] hearing testimony may ...
be offered in connection with a motion for summary
judgment or at trial.”); Hall v. Cnty. of Saratoga, No. 10–
CV–1120, 2013 WL 838284, at *7 (N.D.N.Y. Mar. 6,
2013) (analyzing the plaintiff's 50–h hearing testimony
and his deposition testimony in connection with the
defendants' motion for summary judgment).
On September 19, 2009, at approximately 1:18 a.m., Nassau
County Police Department (“NCPD”) Communications
Bureau received a 911 call for a fight on W. Roosevelt
Avenue. (Defs. Ex. E (“NCPD Case Report”) 1.)
Upon arriving on the scene, NCPD officers 2 observed
approximately 200 people in the street. (Defs. 56.1 ¶ 5; Pl.
56.1 ¶ 5.) Soon thereafter, NCPD officers heard gunshots,
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Harrell v. County of Nassau, Slip Copy (2013)
2013 WL 5439137
and a NCPD officer was flagged down by a group of people
who stated that Plaintiff had been shot in the back by an
unknown individual. (Defs. 56.1 ¶¶ 5–6; Pl. 56.1 ¶¶ 5–6.)
NCPD officers requested assistance and that an ambulance
be dispatched. (Defs. 56.1 ¶ 7; Pl. 56.1 ¶ 7.) After Plaintiff
fainted, the police and the Ambulance Medical Technician
(“AMT”) Regis Beneville told everyone to move away from
Plaintiff, picking him off the ground and putting him on a
stretcher. 3 (Pl.Dep.30:17–22.) Plaintiff was surrounded by
approximately five to six officers and AMT Beneville as he
was placed on the stretcher. (Pl.Dep.32:13–33:3.) The parties
dispute whether Plaintiff resisted the attempts of the officers
and Beneville to render assistance. (Defs. 56.1 ¶ 14; Pl. 56.1
¶ 14.) According to Beneville, Plaintiff attempted to flee
from the officers. (Beneville Aff. ¶ 7.) NCPD officers and
Beneville noted in their reports filed after the incident that
Plaintiff refused to provide “information or history.” (Defs.
56.1 ¶ 15; see also NCPD Case Report; Defs. Ex. F (“NY
EMS Report”).) Plaintiff asserts that NCPD officers did not
ask him any questions. (Pl. 56.1 ¶ 15; see also Pl. 50–h 69:10–
15.)
2
3
Plaintiff does not identify the officers. According to
Regis Beneville, the Ambulance Medical Technician
(“AMT”) who responded to the 911 call for assistance,
Police Officers Joseph LoBello and Ralph Swanson were
already at the location when he arrived, and Police
Officers Gary Farley and John Tucker arrived thereafter.
(Beneville Aff. ¶ 5.) Plaintiff spelled Officer LoBello's
name as LeBello in his Amended Complaint. However,
Defendants in their Answer referred to the officer as
LoBello. The Court identifies him in this opinion as
LoBello.
During his 50–h hearing and his deposition, Plaintiff
referred to the “ambulance person” as the “EMT.”
The parties agree that AMT Beneville is the individual
Plaintiff identified. (See, e.g., Def. 56.1 ¶¶ 8, 12; Pl. 56.1
¶¶ 8, 12, 29.)
*2 As Plaintiff was placed on the stretcher and into the
ambulance, Plaintiff got “very upset” and “went crazy”
because he was in pain and was “laid ... flat on [his] back
where [he] got shot.”(Pls. 56.1 ¶ 16; Pl. 50–h 69:21–70:6.)
Plaintiff told the officers and Beneville “get off of me, get
off of me, get off of me,” and “it's hurting, it's hurting, it's
hurting.”(Pl. 50–h 71:7–21.) One of the officers “came in the
[ambulance] and punched [Plaintiff] in the eye” while he was
being strapped to the stretcher. (Pl. 50–h 71:15–21; 77:21–
78:3; see also Pl. Dep. 35:14–16.) Plaintiff stated at his 50–h
hearing that the officer “just came in, walked in, and punched
[Plaintiff's] eye for no reason,” and then tried to move out of
the way so Plaintiff would not be able to see him. 4 (Pl. 50–
h 71:18–21; 77:10–78:3.) Plaintiff testified at his deposition
that the officer first tried to calm him down before punching
him in the eye. (Pl.Dep.34:18–35:13.) Plaintiff got blood in
his eye. (Pl. Dep. 36:19–22; Pl. 50–h 78:14–20.) Plaintiff told
Beneville that he could not see, but Beneville did not assist
Plaintiff. (Pl.Dep.36:18–24.)
4
It is unclear when this alleged punch occurred. Plaintiff's
description during the 50–h hearing indicates that the
alleged punch happened immediately after being placed
in the ambulance, while the ambulance was still on
location and before Beneville gave Plaintiff an oxygen
mask. (See Pl. 50–h 70:22–76:2 (describing being placed
on the stretcher and telling the officers and Beneville “its
hurting,” and stating “the next thing” was the alleged
punch, which occurred while the ambulance was still at
the scene).) However, Plaintiff's description during his
deposition indicates that the incident may have happened
while Plaintiff was being transported to the hospital and
after Beneville gave Plaintiff an oxygen mask. (See Pl.
Dep. 34:18–37:10 (stating that he did not remember if the
ambulance was moving or parked, but that the incident
occurred after Beneville gave him an oxygen mask and
the offending officer tried to calm him down).)
According to Beneville, Plaintiff “needed to be restrained
for his safety and the safety of the personnel on the
ambulance.”(Beneville Aff. ¶ 7.) However, even after being
restrained, Plaintiff “remained combative and uncooperative
during transport.”(Id. ¶ 9;see also Defs. 56.1 ¶ 16; Pl.
56.1 ¶ 16; NY EMS Report.) Plaintiff “refused to allow
[AMT Beneville] to place an IV or take his blood pressure”
and “continuously remove[d] his oxygen mask.”(Beneville
Aff. ¶ ¶ 7–9.) Plaintiff's physical and mental state were
communicated to the Nassau University Medical Center's
(“hospital”) trauma team, and the trauma team requested
that Plaintiff be “immobilized as best as possible.” (Id. ¶
10.)Beneville denies that he or any of the officers punched,
hit or kicked Plaintiff. 5 (Pl. 56.1 ¶ 16; Pl. Dep. 34:18–36:22;
Beneville Aff. ¶ 12.)
5
Plaintiff does not specify which officers were present and
which officer allegedly punched him. In his deposition,
Plaintiff testified that he did not know which officer
punched him. (Pl. Dep. 35:17–25; see also id. at 32:17–
36:17.)Plaintiff only remembers that the officer was
white and tall. (Id. at 36:2–10.)
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After arriving at the hospital, Plaintiff was immediately
sedated. (Defs. 56.1 ¶ 19; Pl. 56.1 ¶ 19; Beneville Aff. ¶ 11; Pl.
Dep. 37:17–38:2; Defs. Exs. I, J.) The sedative put Plaintiff
to sleep. (Pl.Dep.37:22–25.) When Plaintiff awoke, he had
a cut with a Band–Aid on his eye that covered the side of
his face. (Pl.Dep.38:9–12.) Doctors gave him ice to apply
to his eye to reduce the swelling. (Pl. 50–h 96:25–97:11.)
According to hospital records, Plaintiff's chief complaint was
a gunshot wound to the left interior scapular region of the
back. (Defs. 56.1 ¶ 20; Pl. 56.1 ¶ 20; Defs. Exs. I, J.) Plaintiff
had an “abrasion over the left eyebrow,” but “no other injuries
were noted.” (Defs. 56.1 ¶ 21; Pl. 56.1 ¶ 21; Defs. Ex. K, L.)
Plaintiff submitted photographs of his face, purportedly taken
soon after the incident, that depict an abrasion over his left
eyebrow. 6 (Pl.Ex. C.)
6
Defendants claim that these photographs are
inadmissible, (Defs. Reply 1), but have not provided any
explanation or legal support for their claim.
*3 Plaintiff was released from the hospital on or about
September 20, 2009, (Defs. 56.1 ¶ 22; Pl. 56.1 ¶ 23),
and filed a complaint with the police about his shooting.
(Pl.Dep.40:6–8.) On September 21, 2009, NCPD Public
Information Office issued a News Release requesting that
“anyone with information regarding [the shooting] contact
Crime Stoppers at 1–800–244–TIPS.”(Defs. 56.1 ¶ 25; Pl.
56.1 ¶ 25.) According to Defendants, Plaintiff did not return
telephone calls or otherwise assist NCPD in the investigation
of his shooting. (Defs. 56.1 ¶ 26; see NCPD Case Report 2–
3). Plaintiff claims that no police officers came to speak with
him while he was in the hospital and no one from the police
precinct contacted him about the shooting. (Pl.Dep.39:20–23,
42:21–24, 46:8–22.)
II. Discussion
a. Standard of Review
Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(a);
see also Kwong v. Bloomberg, 723 F.3d 160, ––––, 2013 WL
3388446, at *4 (2d Cir. July 9, 2013); Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 174 (2d Cir.2012). The role of the court
is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.”Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444
F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of
fact exists when there is sufficient “evidence on which the
jury could reasonably find for the plaintiff.”Anderson, 477
U.S. at 252.The “mere existence of a scintilla of evidence”
is not sufficient to defeat summary judgment; “there must
be evidence on which the jury could reasonably find for the
plaintiff.”Id. The court's function is to decide “whether, after
resolving all ambiguities and drawing all inferences in favor
of the non-moving party, a rational juror could find in favor
of that party.”Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d
Cir.2000).
b. Improper Parties
Plaintiff cannot maintain his suit against NCPD. NCPD
is an administrative arm of the County of Nassau, and
under New York law, agencies of a municipality are not
suable entities. See Miller v. County of Nassau, No. 10–
CV–3358, 2013 WL 1172833, at *4 (E.D.N.Y. Mar. 19,
2013) (dismissing claims against the Nassau County Sheriff's
Department because “[u]nder New York law, departments
that are merely administrative arms of a municipality do not
have a legal identity separate and apart from the municipality
and therefore, cannot sue or be sued”); Rose v. County of
Nassau, 904 F.Supp.2d 244, 247 (E.D.N.Y.2012) ( “The
[Nassau County] Police Department is an administrative arm
of the County of Nassau. Under New York law, departments
that are merely administrative arms of a municipality do not
have a legal identity separate and apart from the municipality
and, therefore, cannot sue or be sued.”); Donaldson v. Nassau
Cnty. Police Dep't 3rd Precinct, No. 10–CV–1690, 2010
WL 2976520, at *2 (E.D.N.Y. July 22, 2010) (dismissing
claims against the Nassau County Police Department 3rd
Precinct because it is not a suable entity); Robischung Walsh
v. Nassau Cnty. Police Dep't, 699 F.Supp.2d 563, 565
(E.D.N.Y.2010) (dismissing claim against NCPD as an arm
of the municipality). Plaintiff's claims against NCPD are
dismissed.
*4 Plaintiff's claims against the County of Nassau are also
dismissed. In order to hold a municipal entity liable under
Section 1983, a plaintiff must establish that he was deprived
of his constitutional rights, and that the constitutional
violation was caused by a “municipal policy or custom.”
Monell v. Dep't of Social Servs. of N.Y.C., 436 U.S. 658,
694–95 (1978). At oral argument counsel confirmed that
Plaintiff was not pursuing a Monell claim against the County
of Nassau. (Oral Arg. Tr. 16:2–5.) In addition, Plaintiff failed
to present any evidence that the alleged use of excessive
force is attributable to a municipal policy or custom. See
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Piccone v. Town of Webster, 511 F. App'x 63, 64–65
(2d Cir.2013) (“[T]o hold a city liable under § 1983 for
the unconstitutional actions of its employees, a plaintiff is
required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.”(alteration in original)
(quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d
129, 140 (2d Cir.2010))); see also Askins v. Doe No. 1,
––– F.3d ––––, ––––, 2013 WL 4488698, at *3–4 (2d Cir.
Aug. 23, 2013) (“Municipalities are held liable if they adopt
customs or policies that violate federal law and result in
tortious violation of a plaintiff's rights ....”); Phelan ex rel.
Phelan v. Mullane, 512 F. App'x 88, 90 (2d Cir.2013)
(granting summary judgment to a defendant, assumed to be
a state actor, because plaintiffs “failed to adduce evidence
raising a triable issue of fact as to a policy or custom of
inadequate supervision or training causally responsible for the
injuries alleged”). Plaintiff's claims against Nassau County
are therefore dismissed.
c. Section 1983 Excessive Force Claim
i. Constitutional Right Allegedly Violated
“In addressing an excessive force claim brought under § 1983,
analysis begins by identifying the specific constitutional
right allegedly infringed by the challenged application of
force.”Graham v. Connor, 490 U.S. 386, 394 (1989). An
excessive force claim may be brought under the Fourth or
Eighth Amendments, or as a substantive due process claim
under the Fourteenth Amendment. The law is clear, however,
that “[w]here another provision of the Constitution provides
an explicit textual source of constitutional protection, a court
must assess a plaintiff's claims under that explicit provision
and not the more generalized notion of substantive due
process.”Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir.2000);
Brown v. Baldwin Union Free Sch. Dist., 603 F.Supp.2d 509,
515 (E.D.N.Y.2009) (quoting Kia P., 235 F.3d at 757–58);see
also Piland v. Esposito, No. 09–CV–825, 2010 WL 918306,
at *2 (D.Conn. Mar. 11, 2010) (“The Supreme Court has
held that where another provision of the Constitution provides
an explicit textual source of constitutional protection, a
court must assess a plaintiff's claims under that explicit
provision and not the more generalized notion of substantive
due process.”(quoting Conn v. Gabbert, 526 U.S. 286, 293
(1999))).
*5 “Because the Fourth Amendment provides an explicit
textual source of constitutional protection” against excessive
force used in the course of an arrest, investigatory stop,
or other seizure of a free citizen, claims of excessive
force in that context must be analyzed under the Fourth
Amendment's “reasonableness” standard rather than under
the more generalized “substantive due process” approach.
Graham v. Connor, 490 U.S. at 395;see also Tracy v..
Freshwater, 623 F.3d. 90, 96 (2d Cir.2010) (“The Fourth
Amendment prohibits the use of unreasonable and therefore
excessive force by a police officer.”); Bonilla v. Jaronczyk,
354 F. App'x 579, 581 (2d Cir.2009) (“[C]laims of excessive
force in the course of an arrest, investigatory stop, or other
seizure of a free citizen should be analyzed under the
Fourth Amendment .... “ (internal quotation marks omitted)
(quoting Graham v. Connor, 490 U.S. at 395)). Because
the Fourth Amendment's test of reasonableness is one of
“objective reasonableness,” the inquiry is fact specific and
requires a balancing of various factors. Tracy, 623 F.3d at
96;see also Graham v. City of New York, 928 F.Supp.2d
610 (E.D.N.Y.2013) (“The Fourth Amendment prohibits the
use of unreasonable and therefore excessive force by a
police officer in the course of an arrest.” (internal quotation
marks omitted) (quoting Tracy, 623 F.3d at 96)); Wims v.
N.Y.C. Police Dep't, No. 10–CV–6128, 2011 WL 2946369,
at *4 (S.D.N.Y. July 20, 2011) (“When excessive force
is alleged, a court must determine ‘whether the officers'
actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their
underlying intent or motivation.' “ (quoting Graham v.
Connor, 490 U.S. at 397)). “The ‘reasonableness' of a
particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” and the “calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”
Graham v. Connor, 490 U.S. at 396–97.A court considers
the totality of the circumstances when determining whether
excessive force was used against a plaintiff. Tracy, 623
F.3d at 96.When determining whether an officer's actions
constitute excessive force, a court considers: “(1) the nature
and severity of the crime leading to the arrest, (2) whether the
suspect poses an immediate threat to the safety of the officer
or others, and (3) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.” Tracy, 623 F.3d
at 96.
Excessive force claims that arise outside of the context of
a law enforcement official's arrest, investigatory stop or
other seizure are analyzed under the due process clause of
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Harrell v. County of Nassau, Slip Copy (2013)
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the Fourteenth Amendment. 7 See County of Sacramento v.
Lewis, 523 U.S. 833, 843–44 (1998) (applying substantive
due process standard because “[t]he Fourth Amendment
covers only ‘searches and seizures,’ neither of which took
place here”); Barlow v. Male Geneva Police Officer who
Arrested me on January 2005, 434 F. App'x 22, 25
(2d Cir.2011) (assessing whether to analyze the plaintiff's
excessive force claim under the Fourth or Fourteenth
Amendment, and stating that the first step is to determine
“whether there has been a constitutionally cognizable
seizure”); Hemphill v. Schott, 141 F.3d 412, 418 (2d
Cir.1998) (“[O]utside the context of an arrest, a plaintiff may
make claims of excessive force under § 1983 under the Due
Process Clause of the Fourteenth Amendment.”); Cooper v.
City of Hartford, No. 07–CV–823, 2009 WL 2163127, at
*12–13 (D.Conn. July 21, 2009) (only considering Fourteenth
Amendment claim and not Fourth Amendment claim where
the plaintiff failed to allege that the circumstances amounted
to a search or seizure); Golden v. City of New York, No. 98–
CV–998, 2000 WL 134690, at *4–5 (S.D.N.Y. Feb. 4, 2000)
(excessive force claim arising out of altercation that occurred
prior to the arrest was governed by the due process clause of
the Fourteenth Amendment, not the Fourth Amendment).
7
Excessive force claims by prisoners are analyzed under
the Eighth Amendment. See, e.g., Wilkins v. Gaddy, 559
U.S. 34, 34 (2010).
*6 Plaintiff concedes that he was not under arrest. (Pl.
Opp'n 3.) Plaintiff also was not seized pursuant to the
Fourth Amendment when he was transported to the hospital.
“A ‘seizure’ triggering the Fourth Amendment's protections
occurs only when government actors have, ‘by means of
physical force or show of authority, ... in some way restrained
the liberty of a citizen.’ “ Graham v. Connor, 490 U.S. at
399 n. 10 (alteration in original) (citations omitted). Although
Plaintiff was restrained and, according to Defendants, he
resisted medical attention, Plaintiff asserts that he “did not
resist attempts by [Beneville] and the NCPD to provide him
with assistance.” (Pl. 56.1 ¶ 14.) Since Plaintiff asserts that
he was not forced to go to the hospital against his will, no
“seizure” occurred for purposes of the Fourth Amendment.
See Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir.1998)
( “Plaintiffs do not assert that they were arrested or seized, and
therefore these [excessive force] claims fall outside the Fourth
Amendment protections applied in Graham v. Connor...,
and are governed instead by the Due Process Clause of the
Fourteenth Amendment.”); Reeves v. Akinwunmi, No. 07–
CV–4964, 2008 WL 2114885, at *1 (E.D.N.Y. May 19,
2008) (finding that plaintiff was not subjected to excessive
force under Fourth Amendment where he did “not allege
that he was subject to a Fourth Amendment ‘seizure’ that
would give rise to a reasonableness inquiry” (citing Graham
v. Connor, 490 U.S. at 395)). In addition, counsel conceded
at oral argument that Plaintiff was not seized when he was
transported to the hospital for medical treatment. 8 (Oral Arg.
Tr. 4:14–18.)
8
In his opposition to Defendants' motion for summary
judgment, Plaintiff argued that the protections of the
Fourth Amendment govern. (Pl. Opp'n 7.) However, at
oral argument, counsel for Plaintiff admitted that because
Plaintiff was not in custody and was not seized, his
excessive force claim should be analyzed under the Due
Process Clause of the Fourteenth Amendment. (Oral Arg.
Tr. 4:19–22.)
Plaintiff's claim is therefore appropriately analyzed under
the Fourteenth Amendment. See Salamacha v. Lynch, 165
F.3d 14 (2d Cir.1998) (“In order to establish a claim that the
alleged use of excessive force by a local law enforcement
officer violates the search and seizure provisions of the
Fourth Amendment ... a plaintiff subjected to that force must
establish that he or she was unreasonably seized.”(quoting
Brower v. County of Inyo, 489 U.S. 593, 599 (1989)));
Bourn v. Bull, No. 09–CV–212, 2013 WL 1285858, at
*4–5 (D.Vt. Mar. 27, 2013) (“Given that there was no
seizure under the Fourth Amendment, the [c]ourt must
analyze [the plaintiff's] claim under the substantive due
process requirements of the Fourteenth Amendment.”(citing
Lewis, 523 U.S. at 843, 846)); Smith v. Carey, No. 10–
CV–1247, 2012 WL 6923338, at *5 (N . D.N.Y. Dec.
28, 2012) (analyzing excessive force claim brought by an
involuntarily committed individual under the Fourteenth
Amendment because it arose in the non-seizure, non-prisoner
environment), report and recommendation adopted,No. 10–
CV–1247, 2013 WL 237722, at *5 (N.D.N.Y. Jan. 22, 2013).
Since Plaintiff was not arrested and was not seized, Plaintiff's
excessive force claim is appropriately analyzed under the
substantive due process standard.
ii. Due Process Clause Analysis
*7 The Due Process Clause of the Fourteenth Amendment
protects citizens from “unjustified intrusions on personal
security.” Matican v. City of New York, 524 F.3d 151, 155 (2d
Cir.2008) (quoting Ingraham v. Wright, 430 U.S. 651, 673
(1977)); see also Cooper v. City of Hartford, No. 07–CV–823,
2009 WL 2163127, at *13 (D.Conn. July 21, 2009) (quoting
Matican, 524 F.3d at 155).“To prevail on an excessive force
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Harrell v. County of Nassau, Slip Copy (2013)
2013 WL 5439137
claim under the Due Process Clause, a plaintiff must show
that the defendant state actor engaged in conduct that ‘shocks
the conscience.’ “ Golden, 2000 WL 134690, at *4 (quoting
Hemphill, 141 F.3d at 419); Faccio v. Eggleston, No. 10–CV–
783, 2011 WL 3666588, at *11 (N.D .N.Y. Aug. 22, 2011)
(citing Johnson v. Newburgh Enlarged Sch. Dist ., 239 F.3d
246, 252–53 (2d Cir.2001)). The Second Circuit has held that:
In
determining
whether
the
constitutional line has been crossed,
a court must look to such factors as
the need for the application of force,
the relationship between the need and
the amount of force that was used, the
extent of injury inflicted, and 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.
Lindsey v. Butler, No. 11–CV–9102, 2013 WL 3186488,
at *3 (S.D .N.Y. June 24, 2013) (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir.1973)); Hemphill, 141
F.3d at 419 (quoting Johnson, 481 F.2d at 1033);see also
D'Attore v. City of New York, No. 10–CV–6646, 2013
WL 1180395, at *5 (S.D.N.Y. Mar. 15, 2013) (“Excessive
force claims have subjective and objective components. The
objective component focuses on the harm done in light
of ‘contemporary standards of decency,’ and asks whether
‘the deprivation alleged is sufficiently serious or harmful
enough to reach constitutional dimensions.’The subjective
component requires a showing that the defendant had ‘the
necessary level of culpability, shown by actions characterized
by wantonness' in light of the particular circumstances
surrounding the challenged conduct.”(citations omitted));
Yeldon v. Sawyer, No. 10–CV–266, 2012 WL 1995839, at
*4 (N.D.N.Y. Apr. 26, 2012) (“[C]onduct intended to injure
in some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscienceshocking level.”(quoting Johnson v. Newburgh Enlarged
Sch. Dist., 239 F.3d 239, 251–52 (2d Cir.2001))), report
and recommendation adopted,No. 10–CV–266, 2012 WL
1987134 (N.D.N.Y. June 4, 2012). In practice, this analysis
“utilizes the same standard as claims by convicted prisoners
under the Eighth Amendment.”Tavares v. City of New York,
No. 08–CV–3782, 2011 WL 5877548, at *3 (S.D.N.Y. Nov.
23, 2011) (citing Mayo v. County of Albany, 357 F. App'x 339,
341 (2d Cir.2009)); see also D'Attore, 2013 WL 1180395,
at *5 (“Courts considering a Fourteenth Amendment claim
for excessive force apply the same standards used to evaluate
excessive force claims brought by convicted inmates under
the Eighth Amendment.”(citing United States v. Walsh, 194
F.3d 37, 48 (2d Cir.1999))); Gashi v. County of Westchester,
No. 02–CV–6934, 2007 WL 749684, at *5 (S.D.N.Y. Mar.
12, 2007) (“[T]he same legal standard applies to excessive
force claims brought under the Eighth and Fourteenth
Amendments.”). Viewing the facts in the light most favorable
to Plaintiff in applying the factors suggested by the Second
Circuit—the need for the application of force, the relationship
between the need and the amount of force used, the extent
of the injury inflicted and the reason for the use of force—
the Court concludes that a reasonable jury could find that
excessive force was used against Plaintiff in violation of his
substantive due process rights.
1. Need for Application of Force
*8 The genesis of Plaintiff's claim is his own combative
behavior after he was shot in the back. According to Plaintiff,
he “started going crazy” and was extremely combative after
being shot, (Pl. 56.1 ¶ 12; Pl. Dep. 26:4–27:11), and he
continued being combative even after being placed on the
stretcher, (Pl. 56.1 ¶ 16). Officers attempting to restrain
an individual for medical transport may be authorized to
use force. See, e.g., Nogbou v. Mayrose, No. 07–CV–
3763, 2009 WL 3334805, at *7 (S.D.N.Y. Oct. 15, 2009)
(Fourth Amendment context) (dismissing excessive force
claim because, among other things, plaintiff was “behaving
in an aggressive and combative manner necessitating the
application of a minimal amount of force to restrain [p]laintiff
until he reached [the] Hospital”), aff'd,400 F. App'x 617
(2d Cir.2010); Vazquez v. Marciano, 169 F.Supp.2d 248,
253 (S.D.N.Y.2001) (Fourth Amendment context) (holding
that “the force used by [the officer] to restrain plaintiff
in the ambulance does not give rise to any claim under
Section 1983”); c.f. Stanley v. Meier, No. 09–CV–1643,
2012 WL 2367386, at *5 (D. Conn. June 21, 2012) (Fourth
Amendment context) (“When an individual is resisting
attempts to subdue him and threatening officers, limited use
of force is reasonable.”(citing Lopez v. City of New York, No.
05–CV–10321, 2009 WL 229956, at *8 (S.D.N.Y. Jan. 30,
2009))). There is evidence in the record that Plaintiff, who
had suffered a gunshot wound to his back, was “combative”
while being transported to the hospital. This factor therefore
weighs in favor of Defendants, since it appears that some level
of force was necessary to restrain Plaintiff.
2. Need for Force Versus Amount of Force Used
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2013 WL 5439137
Whether the need for force was commensurate with the
amount of force used is a factor to be considered in
analyzing an excessive force claim. See, e.g., Husbands
ex rel. Forde v. City of New York, 335 F. App'x 124,
129 (2d Cir.2009) (Fourth Amendment context) (analyzing
the relationship between the amount of force that was
used and the need for force); Elliott v. County of Monroe,
115 F. App'x 497, 498 (2d Cir.2004) (Fourth Amendment
context) (analyzing excessive force claim and inquiring
into whether, “to the extent such force was deliberate,
was that degree of force reasonably necessary to effect
plaintiff's arrest under the circumstances then confronting
the officers”); Cannon v. Wood, No. 10–CV–01332, 2013
WL 838299, at *8 (N.D.N.Y. Jan. 22, 2013) (examining
“the correlation between that need [for the application of
force] and the amount of force used” when assessing the
plaintiff's Eighth Amendment excessive force claim), report
and recommendation adopted,No. 10–CV–1332, 2013 WL
838294 (N.D.N.Y. Mar. 6, 2013); Ford v. Phillips, No.
05–CV–6646, 2007 WL 946703, at *7 (S.D.N.Y. Mar. 27,
2007) (Eighth Amendment context) (granting defendants
summary judgment because plaintiff, who brutally attacked
an officer, did not allege that “defendants used force even
commensurate with the force that he used” but instead
alleged that the officers “punched and kicked him as they
got him under control”); Smith, 2012 WL 6923338, at *6
(Fourteenth Amendment context) (“Here, the evidence shows
that Defendants used an appropriate amount of force to
confine [involuntarily committed] Plaintiff to the side room
after he began yelling at staff. The only contact between
Plaintiff and any of the Defendants occurred when Defendant
Liggins pushed Plaintiff and, arguably, when Defendant
Fullem kicked the door while Plaintiff's hand was on it.
Plaintiff did not fall as a result of the push and suffered no
injury other than swelling from the kick. There is no evidence
that any Defendant used any more force than was necessary
to close the door or that any Defendant continued to use
force after the door was closed.”).“[N]ot every push or shove
by a state officer constitutes a violation of substantive due
process.”Hernandez v.. City of New York, No. 00–CV–9507,
2004 WL 2624675, at *7 (S.D.N.Y. Nov. 18, 2004) (quoting
Robison v. Via, 821 F.2d 913, 923 (2d Cir.1987)); see also
Cannon, 2013 WL 838299, at *7 (“[A] de minimis use of
force will rarely suffice to state a constitutional claim[.]'... In
that respect, ‘[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge's chambers, violates
a prisoner's constitutional rights.’“ (citations omitted)).
*9 Plaintiff does not object to the limited amount of
force used to initially restrain him and place him on the
stretcher. Instead, Plaintiff argues that the “act of punching
[him] in the face” after he was restrained in the ambulance
and on his way to the hospital was unjustified. (Pl. Opp'n
4.) The Court agrees. According to Defendants, Plaintiff
“needed to be restrained for his safety and the safety of
the personnel in the ambulance,” (Beneville Aff. ¶ 8), but
they do not explain how Plaintiff was endangering the safety
of Beneville or the officers while lying on his back and
while being strapped to the stretcher. 9 See Cannon, 2013
WL 838299, at *8–9 (denying summary judgment where
some amount of force was used and the parties disputed
the circumstances under which force was used, because a
reasonable jury could find that the plaintiff posed no threat
and therefore “force was used maliciously”); McClendon v.
Cnty. of Nassau, No. 11–CV–0190, 2012 WL 4849144, at
*10 (E.D.N.Y. Oct. 11, 2012) (denying summary judgment
on plaintiff's excessive force claim because genuine issues
of material fact remained on, among other things, plaintiff's
behavior towards the officers prior to use of force, and the
use of force may have been “[u]nnecessary”); Yeldon, 2012
WL 1995839, at *5–6 (finding that, although defendants
presented evidence that they “only used de minimis force for
a limited period of time and only for the purpose of restoring
order, .... if [p]laintiff's sworn testimony in his deposition
is to be believed, [d]efendants assaulted [p]laintiff without
any ‘reason,’ “ and therefore genuine issues of material fact
precluded summary judgment), report and recommendation
adopted,No. 10–CV–00266, 2012 WL 1987134 (N.D.N.Y.
June 4, 2012). Plaintiff admits that he continued to be
combative even after he was initially restrained. (Pl. 56.1
¶ 16.) The hospital trauma team did instruct that Plaintiff
should be immobilized as “best as possible,” and Beneville
had a difficult time determining Plaintiff's blood pressure
and attaching an intravenous line to Plaintiff. (Beneville Aff.
¶¶ 7–10.) If a jury believes Plaintiff's statement that he was
punched in the face, a jury could also find that a punch to
Plaintiff's face by a police officer, while Plaintiff was being
restrained on a stretcher with a gunshot wound to his back
and was complaining about the amount of pain caused by
the shooting, was “beyond what was necessary to subdue”
Plaintiff. See Lagasse, City of Waterbury, No. 09–CV–391,
2011 WL 2709749, at *8 (D.Conn. July 12, 2011) (Fourth
Amendment context) (“In order to succeed on an excessive
force claim, a plaintiff must ‘show that [the officer] used more
force than was necessary to subdue him.’ “ (quoting Curry
v. City of Syracuse, 316 F.3d 324, 332 (2d Cir.2003))). This
factor weighs in favor of Plaintiff.
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9
Defendants dispute that Plaintiff was punched, but
it is not for this Court but rather a jury to decide
whether to credit Plaintiff's version or Defendant's
version of the facts. See In re Fosamax Products Liab.
Litig., 707 F.3d 189, 194 n. 4 (2d Cir.2013) (“[T]he
general rule remains that ‘a district court may not
discredit a witness's deposition testimony on a motion
for summary judgment, because the assessment of a
witness's credibility is a function reserved for the jury.’
“ (quoting Fincher v. Depository Trust and Clearing
Corp., 604 F.3d 712, 725 (2d Cir.2010)), cert. denied,569
U.S. ––––, 133 S.Ct. 2783 (2013); Milfort v.. Prevete,
No. 10–CV–4467, 2013 WL 519041, at *5 (E.D.N.Y.
Feb. 13, 2013) (“[T]he credibility of witnesses is not to be
assessed by the court on a motion for summary judgment.
Resolutions of credibility conflicts and choices between
conflicting versions of the facts are matters for the jury,
not for the court on summary judgment.” (citations and
internal quotation marks omitted)).
3. Extent of Injury Inflicted
“[T]he extent of injury is a relevant factor” in evaluating
an excessive force claim. Abreu v. Nicholls, 368 F. App'x
191, 193 (2d Cir.2010); see also Murray v. Johnson No.
260, 367 F. App'x 196, 198 (2d Cir.2010) (“To satisfy
the objective condition [of an excessive force claim], one
must show that the resulting harm or deprivation was
sufficiently serious. With respect to this element, Hudson
[v. McMillan, 503 U.S. 1 (1992),] makes clear that a
claim of excessive force may be established even if the
victim does not suffer serious or significant injury, provided
that the amount of force used is more than de minimis,
or involves force that is repugnant to the conscience of
mankind.”(citations and internal quotation marks omitted));
D'Attore, 2013 WL 1180395, at *5 (S.D .N.Y. Mar. 15, 2013)
(“The objective component focuses on the harm done in light
of ‘contemporary standards of decency,’ asks whether ‘the
deprivation alleged is sufficiently serious or harmful enough
to reach constitutional dimensions.’ ...The Constitution's
prohibition against excessive force does not extend to ‘de
minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind.’
“ (citations omitted)); Yeldon, 2012 WL 1995839, at *5–
6 (denying summary judgment where plaintiff suffered a
swollen ear and a scraped shin because genuine issues of
material fact remained regarding defendants' claim that they
“only used de minimis force for a limited period of time
and only for the purpose of restoring order”).“De minimis
injuries ‘include short-term pain, swelling, and bruising, ...
brief numbness from tight handcuffing, ... claims of minor
discomfort from tight handcuffing, ... and two superficial
scratches with a cut inside the mouth.’ “ Porath v. Bird,
No. 11–CV–963, 2013 WL 2418253, at *7 (N.D.N.Y. June
3, 2013) (citations omitted) (analyzing Fourth Amendment
excessive force claim); see also Hudson, 503 U.S. at 10
(finding that “the blows directed at [plaintiff], which caused
bruises, swelling, loosened teeth, and a cracked dental plate,
are not de minimis for Eighth Amendment purposes”);
Jackson v. City of New York, No. 10–CV–2530, 2013 WL
1622165, at * 11–12 (E.D .N.Y. Apr. 16, 2013) (denying
summary judgment on the plaintiff's Fourth Amendment
excessive force claim where, after being handcuffed, she
suffered contusions on her back, tenderness in her abdomen,
and swelling around her wrists); Graham v. City of New
York, 928 F.Supp.2d 610 (denying summary judgment of the
plaintiff's Fourth Amendment excessive force claim where
plaintiff complained that he was forcibly removed from
his car and handcuffed without justification and, although
he experienced no lasting damage, suffered immense pain
and swelling); Laporte v. Fisher, No. 11–CV–9458, 2012
WL 5278543, at *3–4 (S.D.N.Y. Oct. 24, 2012) (finding
that a punch to the plaintiff's stomach which caused him
to lose his breath could constitute excessive force if done
to harass plaintiff); Hodge v. Village of Southampton, 838
F.Supp.2d 67, 77–78 (E.D.N.Y.2012) (denying summary
judgment where plaintiff was treated for bruising at a hospital
and discharged with Motrin).
*10 Plaintiff contends that an officer punched him in the
eye, causing it to bleed. (Pl. 56.1 ¶ 28.) Hospital records
establish that Plaintiff suffered an “abrasion over the left
eyebrow.” (Defs. 56.1 ¶ 21; Pl. 56.1 ¶ 21; Defs. Exs. K,
L.) Plaintiff was given ice to reduce the swelling. (Pl. 50–
h 96:25–97:11.) Although the abrasion was only temporary
and Plaintiff suffered no lasting damage, the force applied, as
discussed above, was more than de minimus. Therefore, this
factor arguably weighs in favor of Plaintiff.
4. Purpose of Force Applied
Courts also consider “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.”Lindsey,
2013 WL 3186488, at *3;see also Wilkins v. Gaddy, 559
U.S. 34, 37 (2010) (Eighth Amendment) (explaining that the
“core judicial inquiry” is not “whether a certain quantum of
injury was sustained, but rather ‘whether force was applied
in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm’ “ (quoting
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2013 WL 5439137
Hudson, 503 U.S. at 7)); see also Yeldon, 2012 WL 1995839,
at *4 (Fourteenth Amendment context) (“To determine
whether an excessive force violation occurred, the ‘core
judicial inquiry is ... whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’ ”); McCrory v. Belden, No.
01–CV–0525, 2003 WL 22271192, at *6 (S.D.N.Y. Sept.
30, 2003) (Eighth Amendment context) (“Depending on the
specific facts of how the altercation began and proceeded,
a reasonable fact-finder could conceivably conclude that
some of the actions that plaintiff attributes to each of these
defendants represented malicious or sadistic conduct, or at
least reflected an excessive and unreasonable use of force to
keep or restore order.”).
According to Plaintiff, the officer punched him without
provocation while he was crying and in extreme pain after
being shot in the back and was being restrained on a
stretcher. (Pl. 56.1 ¶ 16; Pl. 50–h 69:21–71:21, 77:10–
78:3.) Defendants argue that Plaintiff was not punched in
the eye, force was only used to calm and subdue Plaintiff
and force was necessary in order to “render pre-hospital
assistance and to transport Plaintiff to the hospital after
being shot.”(Def. Mem. 1; Def. Reply 5; Beneville Aff.
¶¶ 7–10.) Whether Plaintiff was punched and the officer's
motivation for punching Plaintiff are issues to be decided
by a jury. See Bourn, 2013 WL 1285858, at *5 (holding
that plaintiff failed to establish an excessive force claim
under the Fourteenth Amendment because it was undisputed
that “there was no intent to cause any sort of harm”).
Plaintiff's testimony creates an issue of fact as to whether
Plaintiff was punched and whether the officer who allegedly
punched Plaintiff acted with the necessary level of malice and
wantonness to sustain a Fourteenth Amendment excessive
force claim. 10 See Pooler v. Hempstead Police Dep't, 897
F.Supp.2d 12, 26 (E.D.N.Y.2012) (finding that issues of fact
surrounding the circumstances of the alleged use of excessive
force—specifically whether it occurred without justification
—that occurred while the plaintiff was on his way to the
mental health unit precluded summary judgment); Jeanty v.
Cnty. of Orange, 379 F.Supp.2d 533, 541 (S.D.N.Y.2005)
(“Courts in this district are hesitant to dismiss complaints
alleging excessive force even at the summary judgment stage
if conflicts exist in the record regarding the degree and
justification of force.”(citation and internal quotation marks
omitted)). Drawing all inferences in favor of Plaintiff, a
reasonable jury could find that Plaintiff was punched and
that the singular act of punching Plaintiff in the face, while
Plaintiff was being restrained on a stretcher with a gunshot
wound to his back and was complaining about the amount of
pain caused by the shooting, “shocks the conscience.”
10
Plaintiff argues that “intentional, gratuitous uses of force
that are not required to subdue an individual likely will
fail the [Fourth Amendment] objective unreasonableness
test.”(Pl. Opp'n 12 (citing Pierre–Antoine v. City of
New York, No. 04–CV–6987, 2006 WL 1292076, at
*4 (S.D.N.Y. May 9, 2006) as holding that the “use
of force against an already subdued individual would
constitute an objectively unreasonable use of force
under the Fourth[.]”)). For the reasons outlined above,
Plaintiff's claim is more appropriately analyzed under the
Fourteenth Amendment.
*11 Reviewing the evidence in the light most favorable to
Plaintiff, the Court finds that Plaintiff has presented disputed
issues of fact such that a reasonable jury could conclude that
an officer punched Plaintiff in his face without provocation,
and that the punch constituted excessive force and a violation
of Plaintiff's substantive due process rights.
d. Qualified Immunity
“[A] decision dismissing a claim based on qualified immunity
at the summary judgment stage may only be granted when
a court finds that an official has met his or her burden
demonstrating that no rational jury could conclude ‘(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.’ “ Coollick v. Hughes, 699 F.3d 211,
219 (2d Cir.2012); see also Zalaski v. City of Hartford, 723
F.3d 382, 388 (2d Cir.2013) (“Two questions inform qualified
immunity analysis. First, do the facts show that the officer's
conduct violated plaintiff's constitutional rights? If the answer
to this question is no, further inquiry is unnecessary because
where there is no viable constitutional claim, defendants have
no need of an immunity shield. But if the answer is yes, or
at least not definitively no, a second question arises: was the
right clearly established at the time of defendant's actions?”).
“[T]he relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the
situation he confronted.” Zalaski, 723 F.3d at 389 (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001)). Therefore,
“even if a right is clearly established in certain respects,
qualified immunity will still shield an officer from liability
if ‘officers of reasonable competence could disagree’ on
the legality of the action at issue in its particular factual
context.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). “Although a conclusion that the defendant official's
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9
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2013 WL 5439137
conduct was objectively reasonable as a matter of law may
be appropriate where there is no dispute as to the material
historical facts, if there is such a dispute, the factual question
must be resolved by the factfinder.” Taravella v. Town of
Wolcott, 599 F.3d 129, 135 (2d Cir.2010) (quoting Kerman v.
City of New York, 374 F.3d 93, 109 (2d Cir.2004)); see also
Bonilla v. United States, 357 F. App'x 334, 335 (2d Cir.2009)
(“Although qualified immunity is a question of law for the
Court, if there are factual disputes that bear directly upon
whether it was objectively reasonable for an official to believe
that he was acting lawfully, these disputes must be resolved
by a jury before the legal question can be addressed.” (citing
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003))); Higazy
v. Templeton, 505 F.3d 161, 170 (2d Cir.2007) (“Though
immunity ordinarily should be decided by the court, that
is true only in those cases where the facts concerning the
availability of the defense are undisputed; otherwise, jury
consideration is normally required ....“ (quoting Oliveira v.
Mayer, 23 F.3d 642, 649 (2d Cir.1994))).
(S.D.N.Y.2005) (“In the case at bar, there is an issue of fact
surrounding the circumstances of the alleged excessive force.
[The plaintiff] maintains that he was purposely slammed
into walls by the COs on the way to the mental health
unit, while defendants maintain that if [plaintiff's] body did
bump into any walls, it was an accident because the COs
were merely slipping on water that was on the floor as a
result of the broken sprinkler. These factual issues preclude
summary judgment on the defense of qualified immunity.”).
The Court cannot, at the summary judgment stage, determine
that the officer punched Plaintiff in his face in order to calm
him down, nor can it determine that, even if he did so, a
reasonable jury would be compelled to find such a punch
objectively reasonable. Viewing the facts in the light most
favorable to Plaintiff, the offending officer is not entitled
to qualified immunity because there are genuine disputes of
material fact regarding whether the officer acted reasonably
in employing the type of force used against Plaintiff under
these circumstances.
*12 Freedom from the use of excessive force is a clearly
established constitutional right, and therefore the issue is
whether it was objectively reasonable for the officer to
believe that his actions, as described by Plaintiff, did not
violate Plaintiff's right to be free from the use of excessive
force. See Swartz v. Insogna, 704 F.3d 105, 111 (2d
Cir.2013) (holding that a police officer is immune if he
had “an objectively reasonable belief that his actions [were]
lawful”). The factual circumstances surrounding the action
are disputed. Plaintiff argues that he was punched in the
face without provocation, and Defendants argue that Plaintiff
was not punched and that they only used necessary force to
calm Plaintiff. A reasonably jury could, crediting Plaintiff's
testimony, determine that no reasonable officer could believe
that his actions were lawful, but a reasonable jury could
equally conclude, crediting Defendants' evidence, that it was
objectively reasonable for the officer to believe that his
actions were lawful. See Cooper v. City of New Rochelle, 925
F.Supp.2d 588, 609 (S.D.N.Y.2013) (“[I]n the event that there
are triable disputes as to the circumstances that could dictate
whether the defendant[ ] could reasonably believe that his
[or her] conduct was lawful, summary judgment based on an
immunity defense must be denied.”(quoting Allen v. N.Y.C.
Dep't of Corr., No. 06–CV–7205, 2010 WL 1644943, at
*15 (S.D.N.Y. March 17, 2010) (citations omitted)); Pooler,
897 F.Supp.2d at 29–30 (finding that genuine issues of
material fact regarding the circumstances in which force
was used precluded summary judgment based on qualified
immunity); Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 402
e. Intentional Infliction of Emotional Distress
To maintain a claim for intentional infliction of emotional
distress, a plaintiff must establish: “(i) extreme and
outrageous conduct; (ii) intent to cause, or disregard of a
substantial probability of causing, severe emotional distress;
(iii) a causal connection between the conduct and injury; and
(iv) severe emotional distress.”Howell v. N.Y. Post Co., 81
N.Y.2d 115, 122 (1993); see also Gay v. Carlson, 60 F.3d 83,
89 (2d Cir.1995) (outlining test for intentional infliction of
emotional distress); Cardona v. Cmty. Access, Inc., No. 11–
CV–4129, 2013 WL 304519, at *8 (E.D.N.Y. Jan. 25, 2013)
(same).“New York courts have been ‘very strict’ in applying
these elements.”Gay, 60 F.3d at 89 (citing Martin v. Citibank,
N.A., 762 F.2d 212, 220 (2d Cir.1985)).“[T]he standard for
stating a valid claim of intentional infliction of emotional
distress is ‘rigorous, and difficult to satisfy.’ “ Conboy v.
AT & T Corp., 241 F.3d 242, 258 (2d Cir.2001) (quoting
Howell, 81 N.Y.2d at 122). The offending conduct must be
“so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency” and is of such a
nature that it is “utterly intolerable in a civilized community.”
Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d 15, 22–
23 (2008) (quoting Murphy v. Am. Home Products Corp.,
58 N.Y.2d 293, 303 (1983)); see also Biberaj v. Pritchard
Indus., Inc., 859 F.Supp.2d 549, 564 (S.D.N.Y.2012) (noting
that “New York sets a particularly high bar” for intentional
infliction of emotional distress cases requiring “conduct that
is so ‘extreme and outrageous' “ (citations omitted)).
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Harrell v. County of Nassau, Slip Copy (2013)
2013 WL 5439137
*13 Plaintiff's intentional infliction of emotional distress
claim is based on allegations that Defendants “assaulted
and battered, falsely imprisoned, falsely arrested, wrongfully
detained and maliciously prosecuted the Plaintiff”;
Defendants “falsely accused the Plaintiff of criminal activities
that the Defendants knew or should have known were false
which actions were intended and did cause the Plaintiff
to suffer great indignities”; and Defendants' “knowing,
intentional and willful false accusations, false arrest and
imprisonment, and malicious prosecution forced the Plaintiff
to submit to baseless [c]ourt proceedings.”(Am.Compl.¶¶ 68–
71.) Plaintiff has admitted that he was not, in fact, arrested
or prosecuted in connection with his shooting. (Pl. Opp'n 3.)
At oral argument counsel for Plaintiff argued that the alleged
punch that occurred after Plaintiff was in the ambulance
constitutes “extreme and outrageous” conduct. (Oral Arg. Tr.
13:3–15:17.) The Court disagrees.
In New York, a claim for intentional infliction of emotional
distress is “extremely disfavored,” and “[o]nly the most
egregious conduct has been found sufficiently extreme and
outrageous to establish” such a claim. Medcalf v. Walsh, No.
12–CV–5091, 2013 WL 1431603, at *7 (S.D.N.Y. Apr. 9,
2013); see also Tebbenhoff v. Elec. Data Sys. Corp., 244 F.
App'x 382, 384 (2d Cir.2007) (observing that New York's
standard for extreme and outrageous conduct is “rigorous,
and difficult to satisfy”). The “extreme and outrageous
conduct” element requires that the conduct rise to the level
of being “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious and utterly intolerable in a
civilized society.”Rubinow v. Boehringer Ingelheim Pharms.,
Inc ., 496 F. App'x 117, 119 (2d Cir.2012) (citation and
internal quotation marks omitted); see also Margrabe v.
Sexter & Warmflash, P.C., 353 F. App'x 547, 550 (2d
Cir.2009) (“[C]ourts are reluctant to allow recovery under
the banner of intentional infliction of emotional distress
absent a deliberate and malicious campaign of harassment or
intimidation.... [A] court may decide whether alleged conduct
is sufficiently outrageous as a matter of law.”(citations and
internal quotation marks omitted)); Lan Sang v. Ming Hai,
No. 12–CV–7103, 2013 WL 3215458, at *16 (S.D.N.Y. June
27, 2013) (“ ‘[T]he rigor of the outrageousness standard is
well established.’ Conduct must have been ‘so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.’
“ (citations omitted)). A single act of force employed while
trying to transport a patient to the hospital for treatment
following a traumatic gunshot injury, even if determined
to be unreasonable, does not reach the high threshold of
“extreme and outrageous conduct” required under New York
law. See, e.g., Yang Feng Zhao v. City of New York, 656
F.Supp.2d 375, 405 (S.D.N.Y.2009) (“[T]he force allegedly
used on [the plaintiff] by the interrogating detectives, even
if excessive, was hardly of such brutality as to take this
out of the mainstream of cases involving excessive force
after arrest.”); Elmowitz v. Executive Towers at Lido, LLC,
571 F.Supp.2d 370, 379 (E.D.N.Y.2008) (“New York courts
have held that the extreme and outrageous requirement was
not satisfied in ...Saunders v. Taylor, 6 Misc.3d 1015, 800
N.Y.S.2d 356, 2003 WL 24002776, at *3 (N.Y.Sup.Ct.2003),
where the defendant punched plaintiff in the face and yelled
vulgarities at her.”).
*14 Moreover, even assuming that a punch to Plaintiff's
face under the circumstances discussed above was extreme
and outrageous, counsel confirmed at oral argument that the
record does not contain any evidence that the punch was
intended to cause severe emotional distress, or that Plaintiff
suffered any severe emotional distress as a result of the punch.
(Oral Arg. Tr. 15:4–19.) See, e.g., James Biggs v. City of New
York, No. 08–CV–8123, 2010 WL 4628360, at *9 (S.D.N.Y.
Nov. 16, 2010) (granting defendants summary judgment on
plaintiff's intentional infliction of emotional distress claim
where the plaintiff “offered no medical evidence of severe
emotional injury”); Sloane v. Kraus, No. 06–CV–5372, 2010
WL 3489397, at *11 (S.D.N.Y. Sept. 3, 2010) (plaintiff
who alleged that “an officer held a gun to his back in the
Shelter bathroom and punched him in the face following
his arraignment” failed to establish an intentional infliction
of emotional distress claim where, inter alia, the plaintiff
failed to “show that he has suffered severe emotional distress
as a result of these alleged incidents”); Pepe v. Maklansky,
67 F.Supp.2d 186, 187 n. 1 (S.D.N.Y.1999) (dismissing
intentional infliction of emotional distress claim of one of
the plaintiffs where that plaintiff failed to present supporting
medical evidence that he suffered severe emotional distress).
Plaintiff simply has no evidence to support his claim of
intentional infliction of emotional distress and the claim is
dismissed.
III. Conclusion
For the reasons discussed above, Defendants' motion for
summary judgment is denied as to Plaintiff's claim for
excessive force but granted as to Plaintiff's claim for
intentional infliction of emotional distress.
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11
Harrell v. County of Nassau, Slip Copy (2013)
2013 WL 5439137
SO ORDERED.
All Citations
Slip Copy, 2013 WL 5439137
End of Document
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12
Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
1998 WL 637471
1998 WL 637471
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Roy MANDINA, Plaintiff,
v.
THE CITY OF YONKERS, Police Officer
“Jane Doe”, Police Officer “John Doe”,
Eric Miotto and Linda Miotto, Defendants.
No. 97 CIV. 1087(LAP).
|
Sept. 16, 1998.
MEMORANDUM AND ORDER
PRESKA, District J.
*1 Plaintiff Roy Mandina brings this action alleging
multiple claims against the City of Yonkers and two police
officers (“City Defendants”), as well as Eric and Linda Miotto
(“Miotto Defendants”). The City Defendants move, pursuant
to Federal Rule of Civil Procedure 56, for summary judgment.
For the reasons that follow, the motion is granted. In addition,
because I sua sponte determine that I do not have subject
matter jurisdiction over the cause of action against the Miotto
Defendants, the claim asserted against them is dismissed as
well.
BACKGROUND
The specific facts necessary to resolve this matter are
discussed in more detail below in the context of the specific
claims raised by plaintiff. Briefly summarized here, in the
light most favorable to plaintiff, are the general facts that form
the background to this matter.
Plaintiff and defendant Linda Miotto had a child. See
Complaint ¶ 11. At an unspecified point in time, their
relationship deteriorated, and various court proceedings
were necessary to resolve their differences. As a result of
these proceedings, both parties possess respective orders of
protection against each other (“Order of Protection”).See id.
¶ 13.Some time after plaintiff and Linda Miotto ended their
relationship, Linda Miotto married Eric Miotto. See id. ¶
11.The Order of Protection, discussed in greater detail below,
generally prevents either plaintiff or Linda Miotto from
harassing the other and requires both parties to stay away from
each other, with the further proviso that plaintiff is required to
stay away from Linda Miotto's “family members.” See Order
of Protection; annexed as Ex. A to the Declaration Affidavit
of Eileen Ahearn, dated September 2, 1997 (“Ahearn Dec.”).
On February 19, 1996, plaintiff went to Dunwoodie's Pizzeria
on Yonkers Avenue in the City of Yonkers. See Complaint ¶
14. While at the pizzeria, plaintiff and Eric Miotto engaged in
a verbal argument. See id. ¶ 15.Plaintiff left the pizzeria and
proceeded to the Yonkers City Police Department. There, he
spoke to Officer Valara about the incident. See id. ¶ 16.While
plaintiff was standing in front of Officer Valara, one of the
Miotto Defendants called the police department, spoke to
Officer Valara and complained that plaintiff was at their home
harassing them. See id . ¶ 17.Officer Valara told plaintiff to
go home and obtain his copy of the Order of Protection. See
id. ¶ 18.
When plaintiff returned with the Order of Protection, Officer
Valara was no longer on duty. See id. ¶ 19.Plaintiff explained
what happened to the new desk officer. See id. ¶ 19.Officer
Ahearn then spoke with plaintiff about what transpired that
evening. See Ahearn Dec. ¶ 3. Soon thereafter, Officer Ahearn
asked plaintiff for a copy of the Order of Protection and
arrested him. See Complaint ¶ 20. Plaintiff asked Officer
Ahearn to call Officer Valara, but she refused. See id. ¶
21.While placing plaintiff in a squad car, Officer Ahearn
“pushed and shoved” plaintiff, injuring his back. See id. ¶
22.Sometime later that evening, Officer Ahearn took plaintiff
to a hospital. See id. ¶ 23.Plaintiff left the hospital later that
evening and returned to central booking. See id. ¶ 24.
DISCUSSION
*2 Based upon these events, plaintiff alleges the following
causes of action against the City Defendants: (1) false arrest;
(2) intentional infliction of emotional distress; (3) assault and
battery; (4) negligence; (5) a section 1983 claim; and (6)
negligent hiring and supervision. The City Defendants move
for summary judgment, and for the reasons that follow, the
motion is granted.
I. Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), “[a] motion for summary judgment
may not be granted unless the court determines that there is
no genuine issue of material fact to be tried and that the facts
as to which there is no such issue warrant judgment for the
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1
Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
1998 WL 637471
moving party as a matter of law.”Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 36 (2d Cir.1994); seeFed.R.Civ.P.
56(c).See generally Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). An issue of fact is genuine when “a reasonable
jury could return a verdict for the nonmoving party,” and
facts are material to the outcome of the particular litigation
if application of the relevant substantive law requires their
determination.Anderson, 477 U.S. at 248.
“A party who moves for summary judgment has the burden
of showing that no genuine issue of material fact exists and
that the undisputed facts entitle it to judgment as a matter of
law.”Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996);
accord Chambers, 43 F.3d at 36. “In moving for summary
judgment against a party who will bear the ultimate burden of
proof at trial,” however, “the movant's burden will be satisfied
if he can point to an absence of evidence to support an
essential element of the nonmoving party's claim.”Goenaga
v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d
Cir.1995); accord Gallo v. Prudential Residential Servs., Ltd.
Partnership, 22 F.3d 1219, 1223–24 (2d Cir.1994) (“[T]he
moving party may obtain summary judgment by showing
that little or no evidence may be found in support of the
nonmoving party's case.”). The moving party, in other words,
does not bear the burden of disproving an essential element
of the nonmoving party's claim.
If the moving party meets its burden, the burden shifts
to the nonmoving party to come forward with “affidavits,
depositions, or other sworn evidence as permitted by
Fed.R.Civ.P. 56, setting forth specific facts showing that
there exists a genuine issue of material fact.”Rule, 85
F.3d at 1011;accordFed.R.Civ.P. 56(e); Rexnord Holdings,
Inc. v. Bidermann, 21 F.3d 522, 525–26 (2d Cir.1994).
The nonmoving party must “do more than simply show
that there is some metaphysical doubt as to the material
facts.”Matsushita, 475 U.S. at 586. Instead, the nonmovant
must “ ‘come forward with enough evidence to support a
jury verdict in its favor, and the motion will not be defeated
merely ... on the basis of conjecture or surmise.’ “ Trans
Sport, Inc. v. Starter Sportswear, 964 F.2d 186, 188 (2d
Cir.1992) (citation omitted).
*3 “In ruling on a motion for summary judgment, the
district court is required to draw all factual inferences in
favor of, and take all factual assertions in the light most
favorable to, the party opposing summary judgment.”Id.;
accord Chambers, 43 F.3d at 36. “The function of the district
court in considering the motion for summary judgment is
not to resolve disputed issues of fact but only to determine
whether there is a genuine issue to be tried.”Rule, 85 F.3d at
1011. Accordingly, “[a]ssessments of credibility and choices
between conflicting versions of the events are matters for the
jury, not for the court on summary judgment.”Id. Similarly,
“[a]ny weighing of the evidence is the prerogative of the
finder of fact.”Id.“If, as to the issue on which summary
judgment is sought, there is any evidence in the record from
any source from which a reasonable inference could be
drawn in favor of the nonmoving party, summary judgment
is improper.”Chambers, 43 F.3d at 37 (emphasis added).
II. False Arrest Claim
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable
cause, is substantially the same as a claim for false arrest
under New York law.”Weyant v. Okst, 101 F.3d 845, 852
(2d Cir.1996) (citations omitted). To succeed on a claim
for false arrest under New York law, a plaintiff must show
that: “(1) the defendant intended to confine the plaintiff,
(2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.”Bernard v. United
States, 25 F.3d 98, 102 (2d Cir.1994). Probable cause to arrest
“constitutes justification and ‘is a complete defense to an
action for false arrest,’ whether that action is brought under
state law or under § 1983.”Weyant, 101 F.3d at 852 (citing
Bernard, 25 F.3d at 102; Broughton v. State, 37 N.Y.2d
451, 458, 373 N.Y.S.2d 87, 95, 335 N.E.2d 310, 315 (1975),
cert. denied,423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257
(1975); Singer v. Fulton County Sheriff, 63 F.3d 110, 118
(2d Cir.1995), cert. denied,517 U.S. 1189, 116 S.Ct. 1676,
134 L.Ed.2d 779 (1996)). Accordingly, “[t]here is no liability
under § 1983 for false arrest, ... if the arresting officer had
probable cause to arrest the plaintiff.”Bryant v. Rudman, 933
F.Supp. 270, 274 (S.D.N.Y.1996) (citing Lennon, 66 F.3d
at 423–24; Singer, 63 F.3d at 118). Here, the only issue in
dispute is whether Officer Ahearn had probable cause to arrest
plaintiff.
Probable cause exists where officers “have knowledge
or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
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Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
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has committed or is committing a crime.”Weyant, 101 F.3d
at 852. Consequently, probable cause does not demand
scientific precision, but seeks a realistic balance between
individual rights and law enforcement goals. Indeed, as the
Supreme Court noted, the probable cause standard
*4 seek[s] to safeguard citizens from
rash and unreasonable interferences
with privacy and from unfounded
charges of crime. [It] also seek[s] to
give fair leeway for enforcing the
law in the community's protection.
Because many situations which
confront officers in the course of
executing their duties are more or less
ambiguous, room must be allowed for
some mistakes on their part. But the
mistakes must be those of reasonable
men, acting on facts leading sensibly
to their conclusions of probability.
The rule of probable cause is a
practical, non-technical conception
affording the best compromise that has
been found for accommodating these
often opposing interests. Requiring
more would unduly hamper law
enforcement. To allow less would be
to leave law-abiding citizens at the
mercy of the officers' whim or caprice.
Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d
54 (1975) (internal quotation marks and citation omitted).
“[T]he validity of an arrest does not depend upon an ultimate
finding of guilt or innocence. Rather, the soundness of
the arrest hinges on the existence of probable cause at
the time the arrest was made.”Haussman v. Fergus, 894
F.Supp. 142, 147 (S.D.N.Y.1995) (citation omitted). The
existence of “[p]robable cause is evaluated under an objective
standard.”Id. at 148 (citing Lindsey v. Loughlin, 616 F.Supp.
449, 451 (E.D.N.Y.1985)). In conducting the evaluation,
evidence “ ‘must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in the
field of law enforcement.” ’ Illinois v. Gates, 462 U.S. 213,
232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting United
States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d
621 (1981)).
As discussed more fully infra, although a number of facts
in this matter are disputed by the parties, plaintiff admits
a number of critical facts which demonstrate the absence
of a genuine issue of material fact on the question of
whether Officer Ahearn had probable cause to arrest him.
Accordingly, defendants' motion for summary judgment is
granted.
Plaintiff does not dispute that an “altercation” took place with
Eric Miotto at Dunwoodie's Pizzeria. See Mandina Mem. at
3; Complaint ¶ 15 (“Eric [Miotto] harassed the plaintiff and
provoked him into a verbal argument.”). In fact, during his
deposition, plaintiff described this incident in some detail:
Q: [Eric Miotto] spoke to you first?
A: Yes.
Q: What did he say?
A: He looked at me and smiled and said your son is
getting real big.
Q: Did you respond to that?
A: Yes.
Q: What did you say to him?
A: I said, so is your daughter Valerie.
...
Q: Who is Valerie?
A: Valerie is a little girl that he is the father of
that he has not seen in many years.
...
Q: What did he say to you?
A: Exactly.
Q: Exactly.
A: I don't give a fuck about her.
Q: What did you say to him?
A: I said that is because you are a piece of shit.
Q: What did he say to you?
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Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
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*5 A: He said you want to go outside.
Q: And what did you say to him?
ORDERED, ADJUDGED AND DECREED, that neither
party shall harass, molest, menace, assault or threaten the
other or their family members; and it is further
A: I said, I will lead the way.
Q: And then what happened?
A: Then he just sat there.
Q: Did you say anything else?
A: He started to rub in my face how I am not
seeing my son.
Q: While he was rubbing this in your face, did
you physically confront him?
A: No.
...
Q: What, if anything, did you say to him?
A: When he started to say how I was never
going to see him again, he said he would have
custody of my son and you and your wife are
not going to see him again and he started to get
up and come towards me. I took my hands out
of my pockets and he stood there and started
screaming, call the police, call the police.
The guy behind the counter started to get nervous
and I said to the old man there, you don't have
to call the police, I am going to the police right
now.... We were both yelling back and forth at
each other ....
Q: As you were yelling back and forth to each
other, do you remember what it was you were
yelling?
A: Something about his daughter.
Mandina Depo. 49–53. Subsequently, plaintiff went to
the police station and conveyed this information to
both Officers Valara and Ahearn. See Complaint ¶ 19;
Ahearn Dec. ¶ 3.
Finally, the Order of Protection, provides, in pertinent part,
as follows:
...
ORDERED, ADJUDGED AND DECREED, that ... Roy
Mandina[ ] shall remain away from ... Linda Miotto, and
her immediate family members, and shall remain away
from her residence, her place of business or that of her
family members ....
It is also not disputed that at the time of plaintiff's
arrest, Officer Ahearn possessed a copy of the Order of
Protection.See Complaint ¶ 18.
These undisputed facts establish that there are no material
issues of fact as to whether Officer Ahearn had probable
cause to arrest plaintiff. Officer Ahearn was reasonable in
concluding, based upon information conveyed to her, that
plaintiff violated the Order of Protection. More specifically,
by telling Eric Miotto (under the circumstances) that his
daughter, whom plaintiff believed Mr. Miotto had not seen
in “many years,” was getting “real big,” by calling him a
“piece of shit,” and by yelling at him “[s]omething about
his daughter,” Officer Ahearn was certainly reasonable in
concluding that plaintiff violated two provisions of the Order
of Protection. First, plaintiff was forbidden from harassing
or menacing Linda Miotto's “family members.” Second, he
was required to remain away from Linda Miotto's “immediate
family members.” Because it was reasonable for Officer
Ahearn to view these actions as a violation of either provision
in the Order of Protection, she had probable cause to arrest
plaintiff. See, e.g., Otero v. Jennings, 698 F.Supp. 42, 45
(S.D.N.Y.1988) (“New York equates an order of protection
with a showing of probable cause.”); Sassower v. City of
New Rochelle, No. 77 Civ. 5728(LAS), 1980 WL 4673, at *6
(S.D.N.Y. Nov.17, 1980) (finding, in a ruling after a bench
trial, that officers' belief that plaintiff violated the terms of
an order of protection was reasonable and that, therefore, the
officers possessed probable cause to arrest plaintiff).
*6 In opposition, plaintiff makes a number of arguments,
none of which dissuade me from reaching this conclusion.
First, at times, plaintiff seems to take the position that, in
essence, he did not violate the Order of Protection because
Eric Miotto initiated the altercation. See Mandina Aff. ¶¶ 5–
6. 1 Even assuming that to be true, Eric Miotto's purported
unlawful conduct did not give plaintiff license to violate the
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1998 WL 637471
terms of the Order of Protection. See Steiner v. City of New
York, 920 F.Supp. 333, 339–40 (E.D.N.Y.1996) (finding that
officers had probable cause to arrest plaintiff for violating
a court order of protection and concluding, as to a second
individual who had engaged in similarly disruptive conduct,
that “[a]lthough the police might perhaps be criticized for
not arresting [both individuals], they may not properly be
held liable for arresting [the plaintiff]”). Regardless of what
Eric Miotto may have said or done, plaintiff violated the
terms of the Order by harassing him about his daughter,
by calling him a “piece of shit” and by failing to “stay
away” from Eric Miotto after it should have become clear to
plaintiff that the situation in Dunwoodie's Pizzeria was likely
to lead to violence. Indeed, plaintiff aggravated the situation
by accepting Eric Miotto's invitation to “step outside” and by
telling Eric Miotto that he would “lead the way.”
1
It appears that the Order of Protection does not require
Eric Miotto to stay away from plaintiff, nor does the
Order appear to prevent Eric Miotto from harassing
plaintiff. Of course, I express no opinion on whether Eric
Miotto's conduct violated any other laws.
Second, plaintiff argues that he did not violate the “stay away”
provision because it does not prevent him from going to
Dunwoodie's Pizzeria. See Mandina Aff. ¶ 4. That may be
true, but it is also irrelevant. Plaintiff was not arrested because
he was required to “stay away” from Dunwoodie's Pizzeria,
he was arrested because he engaged in a verbal altercation
with Eric Miotto and because he was required to “stay away”
from Eric Miotto.
Plaintiff also attempts to link the terms of the Order of
Protection to New York Criminal Procedure Law section
140.10(4), which provides, in pertinent part, as follows:
(4) Notwithstanding any other provisions of this section,
a police officer shall arrest a person, and shall not
attempt to reconcile the parties or mediate, where such
officer has reasonable cause to believe that:
...
(b) a duly served order of protection is in effect ... and
(i) Such order directs that the respondent or
defendant stay away from persons on whose
behalf the order of protection has been issued
and the respondent or defendant committed an
act or acts in violation of such “stay away”
provision of such order; or
(ii) The respondent or defendant commits a
family offense as defined in subdivision one
of section eight hundred twelve of the family
court act or subdivision one of section 530.11
of this chapter in violation of such order of
protection.
N.Y.Crim. Proc. Law § 140.10(4) (McKinney
Supp.1998). Plaintiff argues that under sub-section
(i), only a “stay away” violation suffices and plaintiff
did not violate this provision by entering Dunwoodie's
Pizzeria and that, under sub-section (ii), he did not
commit a “family offense” because Eric Miotto is not
a family member within the meaning of the applicable
statutory scheme. 2
2
I note here that plaintiff does not argue that the terms
of the Order of Protection—“family members” and
“immediate family members”—somehow exclude Eric
Miotto. Instead, as noted supra, plaintiff argues that the
statutory scheme specifically referred to in sub-division
(ii) does not include Eric Miotto. The Order of Protection
does not define these terms, and in the absence of any
argument to the contrary based upon a specific provision
which would preclude such a reading, Eric Miotto is, in
relation to his wife, Linda Miotto, a “family member [ ]”
or an “immediate family member [ ].”
*7 First, I note that plaintiff's argument suffers from a
conceptual flaw in that section 140.10 is not a substitute for
an Order of Protection; rather, as its terms clearly provide,
it operates as a mandatory arrest provision where certain
conditions are satisfied. Indeed, when read in conjunction
with the other three subdivisions of section 140.10, which
all refer to a police officer's discretionary authority to arrest
individuals (“A police officer may arrest a person ...”),
this reading of the statute becomes even more evident.
Consistent with this reading, there is nothing on the face of
the statute to suggest that activity which otherwise violates
an order of protection somehow becomes non-actionable
because that same conduct does not also fall within section
140.10. Similarly, and most relevant to the present matter,
nothing on the face of the statute suggests that conduct which
otherwise violates an order of protection, and thus gives rise
to the requisite showing of probable cause, somehow no
longer suffices to establish probable cause solely because
that conduct does not also fall within the purview of section
140.10.
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Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
1998 WL 637471
That having been said, plaintiff's argument is easily disposed
because it is irrelevant whether his conduct violated section
140.10. The point is that it violated the Order of Protection
and that is all that is necessary to give rise to the requisite
showing of probable cause. Nonetheless, even assuming that
it was somehow necessary to show a violation of section
140.10, plaintiff's conduct did that, too. Plaintiff's argument
as to the purported inapplicability of section 140.40(4)(b)
(i) is that he did not violate the “stay away” provision by
entering Dunwoodie's Pizzeria. For reasons discussed supra,
that argument is irrelevant—plaintiff did not “stay away”
from Eric Miotto.
Finally, it is certainly correct, as plaintiff argues, that material
presented in this motion reveals that there are questions of
fact in dispute. Specifically, plaintiff and Eric Miotto have
differing recollections as to what transpired at Dunwoodie's
Pizzeria. Mr. Miotto signed a sworn statement, and provided
it to Officer Ahearn in connection with plaintiff's arrest,
which, in essence, states that plaintiff entered the restaurant
and initiated the verbal altercation and that the extent of the
verbal attacks were markedly more graphic and derogatory.
See Miotto Sworn Statement, dated February 19, 1996;
annexed as Ex. B to the Ahearn Dec. Plaintiff's deposition,
and affidavit in opposition, present a very different picture.
See Mandina Aff. at ¶¶ 5 & 10; Mandina Depo. at 49–55.
their claims against him, and because the police department
should have been aware of that fact, there was no probable
cause to arrest him. See Mandina Aff. ¶¶ 8–10.
My resolution of this motion avoids these disputed issues.
Plaintiff is certainly correct that if the only evidence before
me was these disputed versions of the events, summary
judgment would not be appropriate. What plaintiff fails to
realize, however, is that his own version of the events, as
conveyed to the police department, establishes the absence of
a material fact on the question of probable cause. Thus, in
reaching my decision, I do not rely on Eric Miotto's sworn
statement (or, for that matter, any aspect of his version of
the events), nor do I rely upon any events that may or may
not have taken place at the Miotto residence. Again, instead,
and as set forth supra, I rely upon plaintiff's version of what
transpired at Dunwoodie's Pizzeria. Officer Ahearn states
that she, too, relied upon plaintiff's version of the events at
Dunwoodie's in arresting him. See Ahearn Aff. ¶¶ 9–10.
In sum, I find that there are no material issues of fact as to
whether Officer Ahearn had probable cause to arrest plaintiff.
Accordingly, defendants are entitled to summary judgment,
and plaintiff's section 1983 action based upon his claim of
false arrest is dismissed. 3
3
In addition, while plaintiff was at the police department
entering a complaint against Eric Miotto and informing
Officer Valara of the incident, either Linda Miotto or Eric
Miotto called the police department and spoke to Officer
Valara. While plaintiff was standing in front of Officer
Valara, the caller said that plaintiff was at their house,
harassing them and violating the order of protection. See
Mandina Aff. at ¶ 8. Eric Miotto's sworn statement, in which
he indicates that he was the caller, states that he waited
approximately one hour after plaintiff left his home to call
the police because he did not want to upset his family.
Putting aside the disputed issues concerning this timing
problem, plaintiff affirmatively swears that he was never at
Eric Miotto's residence. See Mandina Aff. at ¶ 7.
*8 When plaintiff returned to the police department later
that evening, Officer Valara was no longer on duty. Instead,
Officer Ahearn, who was not present during the telephone
call incident, was on duty. Plaintiff claims that he informed
Officer Ahearn about the call and that he urged her to call
Officer Valara to confirm as much. See Mandina Aff. ¶ 10.
Plaintiff claims that because the Miotto Defendants falsified
Because the false arrest claim is dismissed, plaintiff's
claim against the City of Yonkers for negligent hiring
and supervision is also dismissed.
III. Excessive Force
The standard to be applied to a claim of excessive force
during an arrest is well-settled. “[T]he Supreme Court has
made it clear that excessive force that is used by officers
arresting a suspect ought to be characterized as invoking
the protections of the Fourth Amendment, which guarantee
citizens the right to be free from unreasonable seizures of
the person.”Hemphill v. Schott, 141 F.3d 412, 416–17 (2d
Cir.1998) (citing Graham v. Connor, 490 U.S. 386, 394, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In determining whether
the force used violated the Fourth Amendment, I must make
“an exclusively objective” inquiry and examine the following
factors: “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether the suspect is actively resisting arrest
or attempting to evade arrest by flight.”Id. at 417 (citing
Graham, 490 U.S. at 396). I must also take into account “the
perspective of the officer at the time of the arrest ... [and]
the fact that the officer may have been required to make a
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Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
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split-second decision.”Lowth v. Town of Cheektowaga, 82
F.3d 563, 573 (2d Cir.1996); see also Nash v. Cahill, No. 94
Civ. 4091(LAP), 1996 WL 412859, at *3 (S.D.N.Y. July 22,
1996).
*9 In the Complaint, plaintiff claims that Officer Ahearn
“forcibly removed the plaintiff from the precinct and pushed
and shoved him into the rear seat of a police car, injuring
plaintiff's back.”Complaint ¶ 22. As the proof has developed,
plaintiff claims that Officer Ahearn placed handcuffs on
him too tightly and that putting his hands behind his back
caused him to suffer pain. See Mandina Depo. at 70. Plaintiff
complained that the handcuffs were too tight, but Officer
Ahearn did not loosen them. See id.In addition, plaintiff
claims that Officer Ahearn pushed his head down as he was
entering the back of the car and that as a result he “landed hard
on the seat and jammed something in [his] back.”Id. at 72.
After complaining of this back pain, Officer Ahearn took
plaintiff to a hospital. In August 1992, prior to his arrest,
plaintiff suffered two herniated disks in a work-related
accident. See id. at 10.Plaintiff claims that Officer Ahearn's
conduct injured this same part of his back. See id. at 11.At
the hospital, plaintiff went to the emergency room, his spine
was x-rayed and he was prescribed pain medication, which
plaintiff believes was codeine and valium. See id. at 14–15 &
84.The procedure took six or seven hours. See id. at 82.The
doctor told plaintiff that he could not find anything wrong
with his back based upon the x-rays, see id. at 83, and that
if the pain persisted, he should see his regular physician.
After being released from the hospital, plaintiff did not see
his regular physician for the pain he allegedly suffered during
his arrest. See id. at 13–15.
The Court of Appeals and the Supreme Court have made
clear that “ ‘[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers,’
violates the Fourth Amendment.”Graham, 490 U.S. at 384
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.),
cert. denied,414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324
(1973)). Here, the Complaint alleges that Officer Ahearn
“pushed and shoved” plaintiff into the rear of the police
car. Complaint ¶ 22. Having considered the evidence in
the light most favorable to plaintiff (indeed, having only
considered his deposition testimony and the records from
his visit to the hospital), I find that there are no material
issues as to whether this “push and shove” violated plaintiff's
Fourth Amendment rights and that, accordingly, defendants
are entitled to summary judgment. Plaintiff's deposition
testimony reveals that while he may have suffered some pain,
and while the City Defendants admit that some force was
used, the treating physician at the hospital, after taking an xray of plaintiff's back, could not identify any injury and that,
although plaintiff was specifically advised that he should see
his personal doctor if the pain persisted, plaintiff chose not
to do so. Accordingly, defendants are entitled to summary
judgment on plaintiff's excessive force claim. 4
4
As to plaintiff's various state law causes of action
against the City Defendants, plaintiff asks me to exercise
supplemental jurisdiction under 28 U.S.C. § 1367. See
Complaint ¶ 4. Because all of the federal claims have
been dismissed, I decline to exercise supplemental
jurisdiction. I also note that although the Complaint
refers to violations of plaintiff's First, Fourth, Fifth,
Eighth and Fourteenth Amendment rights, see Complaint
¶ 1, and although the City Defendants specifically
moved to dismiss these claims, plaintiff has not offered
any evidence or arguments concerning these claims.
Accordingly, to the extent they were even properly pled,
they are dismissed as well.
IV. Subject Matter Jurisdiction and the Miotto Defendants
*10 Although the Miotto Defendants have not moved to
dismiss, the action is dismissed as against them for lack of
subject matter jurisdiction. The only federal cause of action
pled in the Complaint was plaintiff's section 1983 claim
against the City Defendants. See Complaint ¶¶ 54–57. As
against the Miotto Defendants, plaintiff's sole claim sounds
in the state law cause of action for malicious prosecution.
See id. ¶¶ 62–66.Because the federal cause of action has been
dismissed, and because I decline to exercise supplemental
jurisdiction over the state law claims, plaintiff's claim against
the Miotto Defendants is dismissed for lack of subject
matter jurisdiction. See, e.g., Westmoreland Capital Corp. v.
Findlay, 100 F.3d 263, 266 (2d Cir.1996) (proper for district
court to consider lack of subject matter jurisdiction sua sponte
and in the absence of a motion).
CONCLUSION
For the reasons stated above, the City Defendants' motion for
summary judgment is granted. In addition, the action against
the Miotto Defendants is dismissed for lack of subject matter
jurisdiction.
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Mandina v. City of Yonkers, Not Reported in F.Supp.2d (1998)
1998 WL 637471
The Clerk of the Court shall mark this action closed and all
pending motions denied as moot.
All Citations
Not Reported in F.Supp.2d, 1998 WL 637471
SO ORDERED:
End of Document
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© 2015 Thomson Reuters. No claim to original U.S. Government Works.
8
Bove v. New York City, Not Reported in F.Supp.2d (1999)
1999 WL 595620
KeyCite Yellow Flag - Negative Treatment
Disagreement Recognized by
Cunningham v. Rodriguez,
November 22, 2002
S.D.N.Y.,
1999 WL 595620
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
on her door. 2 When the door to Ms. Blinn's apartment
opened, “approximately five police officers emerged and
began beating the plaintiff about the body with their night
sticks and shoes.”(Compl.¶ 2.) Since Blinn declined to press
charges at the time, the plaintiff was not arrested, 3 though
Officer Doscher prepared a complaint regarding the domestic
dispute that prompted Blinn's 911 call. (Id. ¶ 4.)
No. 98 CIV. 8800(HB).
|
1
Although the complaint indicates December 18, 1996,
the alleged incident in fact occurred on December 18,
1995. Plaintiff's counsel explained this oversight as a
proofreading error.
2
The plaintiff's account of the events leading up to
this incident are unclear at best, and contradictory at
worst. In his original complaint, Bove said that he went
upstairs “pursuant to a telephone call made by Ms. Blynn
[sic] to come to her premises.”(Compl.¶ 2.) Similarly,
in his statements to the Civilian Complaint Review
Board (“CCRB”) he claims that “she insisted that he
‘come upstairs so we can talk about it” ’ and that she
implored him to come quickly. (Curtis Decl. Exhibit
B.) Yet during his deposition, the scene is set quite
differently. When the question posed was, “[Blinn] didn't
ask you to come upstairs?” Bove answered, “No, I went
upstairs on my own to apologize”, and he answered
“Yes” when asked if that was the last phone call made
before he went to Blinn's apartment. (Declaration of
Elisabeth Youngclaus, Assistant Corporation Counsel
(“Youngclaus Decl.”) Ex. A at 5.) Still later, paragraph 2
of the plaintiff's proposed amended complaint, submitted
some two weeks after the plaintiff's deposition, reads,
“At the time and place heretofore mentioned, plaintiff
had knocked on the door of the said Mary Blinn.”
3
Anthony BOVE, Plaintiff,
v.
NEW YORK CITY, New York City Police
Department, Officer Deutsch and Four Other
Unknown Officers, and Mary Blinn, Defendant.
On December 29, 1995, however, Blinn signed a
criminal complaint which alleged that on December 17,
1995 at approximately 11:47 p.m., Bove came to her
apartment and hit and pushed her. (See Declaration of
Muriel Goode–Trufant, Assistant Corporation Counsel
(“GT Decl.”) Ex. E.) The complaint also alleged that
Bove had called her “in excess of 200 times” at home and
at work, making threats against Blinn and her friends.
(Id.) After his arrest in January 1996, Bove pled guilty on
June 28, 1996 to Aggravated Harassment in the Second
Degree and was sentenced to three years probation. (Id.)
Aug. 6, 1999.
MEMORANDUM & ORDER
BAER, District J.
*1 Plaintiff Anthony Bove brings this action alleging claims
for violations of 42 U.S.C. §§ 1981, 1981a, 1983 and
1985, based on, inter alia, a physical beating he allegedly
sustained at the hands of several New York City Police
Department (“NYPD”) officers. The plaintiff moves to amend
his complaint, and the currently-named defendants now move
for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons set forth below, the
plaintiff's motion is DENIED, and the defendants' motion is
GRANTED.
I. BACKGROUND
The plaintiff commenced this action on December 14, 1998.
The complaint alleges that “[o]n or about December 18,
1996[sic], the plaintiff was beaten severely by five New York
City Police Officers” just outside the apartment of nameddefendant Mary Blinn. (Compl.¶ 1.) 1 The beating allegedly
occurred around midnight on December 18, 1995 after
Blinn telephoned 911 to report a domestic dispute between
her and the plaintiff. Six officers from the First Precinct
—Sergeant Singer and Officers Doscher, Martin, Minerly,
O'Brien and Verdino—responded to the call. (Declaration
of Barbara Curtis, Assistant Corporation Counsel (“Curtis
Decl.”) ¶¶ 4–9 and Exhibit B.) Sometime later, the plaintiff,
who lives in the same apartment building as Blinn, knocked
Sometime later, the plaintiff called the First Precinct alleging
that he had been severely beaten by officers from that
precinct. (Declaration of Anthony Bove (“Bove Decl.”) ¶
8.) Sergeant Fazzolari responded to the plaintiff's call and
went to the plaintiff's apartment to speak with him about the
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alleged incident. Bove alleges that Fazzolari offered medical
assistance, but he refused.
At 4:03 a.m., the plaintiff registered at the emergency room
of the New York Downtown Hospital. (GT Decl. Ex. D.)
After extensive examination and testing that included a
cervical spine x-ray, the plaintiff was diagnosed as having
a “contusion”—i.e., a bruise—on his head, (Id.), and was
released.(Id.)
On December 21, 1995, the plaintiff filed a complaint with
the Civilian Complaint Review Board. (Bove Decl. ¶ 10.)
Moreover, on or about March 12, 1996, the plaintiff filed
a notice of claim with the Comptroller's Office of the City
of New York. (See GT Decl. Ex. C.) The notice of claim
states that Bove's claim arose on December 18, 1995 at
approximately 12:30 a.m., “when approximately five officers
of the NYPD, whose identity is yet to be ascertained, kicked,
hit and struck the complainant with their nightsticks, 4
causing complainant to sustain injuries to his head, neck and
spine ....”(Id.)More specifically, the plaintiff claims that the
incident resulted in injuries including “a double hernia, a
herniated disc, a deviated septum causing painful fluid to
collect in my ear, damage to my hearing, and damage to my
eyesight.”(Affidavit of Anthony Bove (“Bove Aff.”) ¶ 2.)
4
Again, the description Bove gave to the CCRB is
different and reads: “Mr. Bove said that the officers
did not hit him with their nightsticks, but hit him with
something ‘that stung’ and was black and metal.”(Curtis
Decl. Ex. B.)
*2 On December 14, 1998, the plaintiff commenced this
action, naming as defendants the City of New York, the New
York City Police Department (“NYPD”), “Officer Deutsch,
and Four Other Unknown Officers” and Mary Blinn. The
complaint “is an action pursuant to 42 U.S.C.1981, 1983,
and 1985 for the violation of the plaintiff's Civil Rights,
and conspiracy to violate plaintiff's civil rights.”(Compl.¶ 1.)
Although the plaintiff cites as “Statutes involved” 42 U.S.C.
§§ 1981, 1981a(1), 1988(b), 1985, “Conspiracy Against [sic]
Rights 18 U.S.C.241 [sic]” and “the equal protection clause of
the Fourteenth Amendment”, (Compl.¶ 6), Bove's request for
damages is limited to “42 U.S.C., [sic] 1981 and [sic] 1981a
and 42 U.S.C.1983 [sic]” based on “the unlawful conspiracy
to violate plaintiff's rights ....” (See Compl. at 5.) The plaintiff
also alleges two causes of action under New York state law
for “tortious assault” and “intentional infliction” and seeks
compensatory and punitive damages.
The plaintiff now seeks to amend his complaint, and the
currently-named defendants move for summary judgment.
II. DISCUSSION
A. Motion to Amend
By his “Memorandum of Law in Support of the Motion to
Amend the Complaint to Add Parties [sic] Defendants”, the
plaintiff seeks to amend his complaint to substitute for the
herein-captioned “Officer Deutsch and Four Other Unknown
Officers” the names of five NYPD officers: Officers Nicholas
Doscher, Paul Minerly, Richard Verdino, Sean O'Brien, and
Sergeant Carmine Fazzolari.
Rule 15(a) of the Federal Rules of Civil Procedure provides
that leave to amend should “be freely given when justice
so requires.”Fed.R.Civ.P. 15(a). However, a court may deny
leave to amend if the proposed amendment(s) would be futile.
See American Express v. Robinson, 39 F.3d 395, 402 (2d
Cir.1994). Because I find that the proposed amendments in
the case at bar would be futile—due to both procedural and
substantive defects—the plaintiff's motion is denied.
1. Officer Doscher
The plaintiff contends that his claims against Officer Nicholas
Doscher in the proposed amended complaint relate back to
the original complaint, which mistakenly identified Doscher
as “Officer Deutsch.”
Federal Rule of Civil Procedure 15(c) governs the
determination of whether an amended complaint that seeks to
substitute the name of a party will “relate back” to the date of
the original complaint. Rule 15(c) reads, in relevant part:
An amendment of a pleading relates back to the date of the
original pleading when
...
(2) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the
party against whom a claim is asserted if the foregoing
provision (2) is satisfied and, within the period provided
by Rule 4(m) for service of the summons and complaint,
the party to be brought in by amendment (A) has received
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such notice of the institution of the action that the party
will not be prejudiced in maintaining a defense on the
merits, and (B) knew or should have known that, but for
a mistake concerning the identity of the proper party, the
action would have been brought against the party.
*3 Fed.R.Civ.P. 15.
Bove retained his lawyer on November 1, 1998. (See Wolf
Decl. ¶¶ 3, 6.) The complaint in the case at bar was filed on
December 14, 1998. Thus, approximately six weeks passed
between the time that the plaintiff consulted his attorney
and the time the action was commenced. 5 The relation back
doctrine serves to correct mistakes of fact and law—not
to encourage delay—and should not apply to salvage a
plaintiff's lack of diligence. It is undisputed that Doscher,
the purportedly “proper defendant”, is not “already in court.”
See Arendt v. Vetta Sports, Inc., 1996 WL 5324, *2 (N.D.Ill.
Jan. 4, 1996) (“Relation back is generally allowed in order to
correct a misnomer of defendant where the proper defendant
is already in court and the effect is merely to correct the
name under which he is sued.”) (emphasis added). Indeed,
the plaintiff has made no attempts to formally put Officer
Doscher on notice of this suit, and no attempt has been made
to actually serve him.
5
In fact, the time between Mr. Wolf's first contact with
Bove—and presumably, receiving some form of notice
and description as to the plaintiff's possible claim—and
the filling of the complaint was much greater than six
weeks. Counsel's declaration indicates that during the
summer of 1998, “I received a call from the plaintiff who
was recuperating from an operation and was not up to
seeing me.”(Wolf Decl. at ¶ 2.)
Notwithstanding the plaintiff's contentions to the contrary, the
information needed by the plaintiff to obtain the names and/
or identities of the officers on the scene of the alleged incident
was available long before the statute of limitations had run.
The final CCRB report, which included interviews with all the
officers on the scene that evening, and of course, each officer's
name, shows that the final supervisor's signature was affixed
on April 21, 1997. (See Curtis Decl. Ex. B.) Even assuming
that the report was not immediately made available to the
plaintiff, 6 it is both the plaintiff's and his lawyer's position
that on November 4, 1998, Bove received and forwarded to
counsel a letter from the CCRB which informed him that the
investigation was being closed since “the Board was unable to
identify the police officer(s) alleged to have been involved in
the incident.”(Wolf Decl. Exhibit A.). This letter should have
alerted the plaintiff that a final report had been completed. The
CCRB materials were and would have been available to the
plaintiff had he simply written a letter to the Board and asked
for a copy. 7 Plaintiff's counsel did not obtain the CCRB's
investigation file and report until May 13, 1999—over six
months after it became available and approximately five
months after suit was commenced—and only after defense
counsel referenced the file during a teleconference with
the Court and suggested that plaintiff's counsel obtain a
copy. Moreover, in conjunction with the discovery that was
available to the plaintiff during his criminal proceedings, the
plaintiff obtained or could have obtained copies of the report
made by Officer Doscher the night of the alleged beating. Put
another way, a modicum of diligence would have allowed the
names of all the officers to be in the complaint.
6
The plaintiff was also apparently in contact with the
investigating officer (“I.O.”) during the investigation.
I.O. Chen's notes, dated February 25, 1997, indicate that
he received a telephone call from Bove to confirm his
address and phone number. (See Curtis Decl. Ex. B.)
7
This information was conveyed to the Court by
representatives of the CCRB. Moreover, I was
informed, the plaintiff could have obtained the Board's
investigation materials—and thus the officers' names
—before the investigation was closed, simply by having
subpoenaed the file.
While “heroic” diligence is not required, neglect and inaction
are inexcusable. Accordingly, I find the doctrine of relation
back inapplicable to the case at bar and deny the plaintiff's
motion to amend. 8
8
Alternatively, fatal to the plaintiff's application to
amend his complaint was his failure to serve Officer
Doscher within the time proscribed by Rule 4(m). Since
the complaint was filed on December 14, 1998, the
plaintiff was allowed 120 days after the filing—until
April 13, 1999—to serve the defendants named therein.
SeeFed.R.Civ.P. 4(m). By letter to the Court dated
March 17, 1999, plaintiff's counsel indicated that “On
the same day of the [February 18, 1999] conference, we
provided Corporation Counsel with the name of one of
the officers, an officer “Doscher.” My client advises me
that upon checking with the precinct, Officer Doscher is
there.”(GT Decl. Ex. G.) Thus, the plaintiff was aware
by at least February 18, 1999 that Officer Doscher was
known and available for effective service. The Court's
records indicate that Officer Doscher has not, to this day,
been served by the plaintiff. Given the failure to serve
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this proposed defendant by the April 13, 1999 deadline,
this Court was and is able to on its own initiative dismiss
this action. SeeFed.R.Civ.P. 4(m).
2. Officers Minerly, Verdino, O'Brien and Carmine
*4 As to Officers Minerly, Verdino, O'Brien and Fazzolari,
the plaintiff's motion to amend is also denied. The plaintiff
alleges that he was only recently able to identify these officers
as the ones allegedly involved in his beating. (See Bove
Aff. ¶ 12.) 9 Thus, at the time the complaint was filed in
this action, the plaintiff did not know their identities. In
Barrow v. Wethersfield Police Department, 66 F.3d 466,
470 (2d Cir.1996), the Second Circuit ruled that “Rule
15(c) does not allow an amended complaint adding new
defendants to relate back if the newly-added defendants were
not named originally because the plaintiff did not know their
identities.”The plaintiff in Barrow named as defendants in
his complaint ten “John Does” police officers since their
identities were not known to him. The plaintiff then amended
his complaint, after the statute of limitations, to identify the
officers by name. The Second Circuit affirmed the district
court's dismissal of the amended complaint as untimely,
holding that “[s]ince the new names were added not to
correct a mistake but to correct a lack of knowledge, the
requirements of Rule 15(c) for relation back are not met.”Id.
at 470.Similarly here, the plaintiff did not know the identity of
the officers until he sought to file an amended complaint more
than a year after the statute of limitations had run. Thus, as in
Barrow, Bove sought to correct a lack of knowledge, not to
correct a mistake, and the amendment is therefore untimely.
9
The plaintiff's memorandum in support of his motion to
amend similarly reads: “It is [sic] when the depositions
of all the officers listed in the C.C.R.B. report resulted in
a virtual line-up that the plaintiff was able to identify the
perpetrators.”(Pl.'s Mem. Supp. Am. at 6.)
The plaintiff contends that equitable tolling should operate to
extend the statute of limitations. On this score, Bove relies on
Farkas v. Farkas, 168 F.3d 638 (2d Cir.1999) and Blaskiewicz
v. County of Suffolk, 29 F.Supp.2d 134 (E.D.N.Y.1998) for
the proposition that a coverup by the six officers prevents the
defendants from raising the statute of limitation as a defense.
The holding in Farkas, however, was limited to cases of the
concealment of conversion. 168 F.3d at 642 (“[P]articipation
in the concealment of a conversion, if ‘intentional’ or even
‘careful’, can be a sufficient basis for estoppel.”) (internal
citations omitted). More importantly is that there was no
coverup or concealment by the officers—at least none that
prevented the plaintiff from discovering their identities. It
is undisputed that all six officers interviewed by the CCRB
concede that they responded to Blinn's apartment on the
night in question. Moreover, the statements given to the
CCRB by Officers Doscher and Minerly identify the other
four officers who responded to the scene that night, a fact
which belies any claims of cover-up or concealment such
that the plaintiff was prevented from obtaining the names of
the alleged wrongdoers. (Curtis Decl. Ex. B.) In summation,
the officers were identified and available to the plaintiff well
before the three year statute of limitation ran.
Moreover, the plaintiff's reliance on Blaskiewicz is misplaced,
if not harmful to his position. Indeed, the court there correctly
ruled that equitable tolling arises where a party's acts of
concealment prevent a plaintiff from “becoming aware of
facts that give rise to a cause of action ... The doctrine
is applicable where the defendant engages in conduct that
concealed from the plaintiff the existence of the cause
of action.”29 F.Supp.2d at 141 (emphasis added) (internal
citations and quotations omitted). In the case at bar, the
defendants could not possibly have engaged in conduct that
concealed from Bove the facts that gave rise to his cause of
action. Assuming arguendo that the alleged beating did in fact
occur, the plaintiff left the scene well aware that his cause
action existed. Indeed, the plaintiff filed a complaint with the
CCRB immediately after the alleged incident, filed a timely
notice of claim, and timely commenced the instant action.
C. Defendants' Motion for Summary Judgment 10
10
The plaintiff erroneously named as defendants both the
City of New York and New York Police Department.
Pursuant to the New York City Charter, an agency of
the City of New York cannot be sued independently.
See N.Y. City Charter, Chapter 17, § 396 (“[a]ll actions
and proceedings for the recovery of penalties for the
violation of any law shall be brought in the name of
the City of New York and not in that of any agency”).
Accordingly, the plaintiff's complaint against the New
York City Police Department is dismissed. See East
Coast Novelty Co. v. City of New York, 781 F.Supp. 999,
1010 (S.D.N.Y.1992) (“As an agency of the City, the
police department is not a suable entity.”).
*5 Although the plaintiff's claims against the officers must
be dismissed on procedural grounds, the substance of Bove's
claims warrant brief comment.
1. Standards for Summary Judgmnt
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Summary judgment is properly granted only when the
pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits show that there is no genuine issue of
material fact and the movant is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56(c). The substantive law
determines what facts are material to the determination.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In assessing the record before the court, the “non-movant will
have his allegations taken as true,”Distasio v. Perkin Elmer
Corporation, 157 F.3d 55, 61 (2d Cir.1998), but he or she may
not oppose summary judgment merely by offering conclusory
allegations or denials. See Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 101 (2d Cir.1997).
2. Section 1981 Claim
To establish a claim under § 1981, a plaintiff must establish
the following three elements: (1) the plaintiff is a member of
a racial minority; (2) the defendants intended to discriminate
against the plaintiff on the basis of race; and (3) the
discrimination “concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts,
sue and be sued, give evidence, etc.).”Mian v. Donaldson,
Lufkin & Jenrette Securities Corporation, 7 F.3d 1085, 1087
(2d Cir.1993). As a white male of European ancestry, Bove
is not a member of a racial minority. Moreover, the plaintiff
does not allege that he was discriminated against because
of his race.Jenkins v. Arcade Building Maintenance, 44
F.Supp.2d 524, 528 (S.D.N.Y.1999) (“In order to survive a
motion to dismiss, the events of the intentional and purposeful
discrimination, as well as the racial animus constituting
the motivating factor for the defendant's actions must be
specifically pleaded in the complaint.”) (internal quotations
omitted). Accordingly, the plaintiff's § 1981 claims must be
dismissed. 11
11
The plaintiff's claims based on § 1981a are even less
meritorious and are similarly dismissed. Indeed, § 1981a
applies only to cases involving allegations of intentional
discrimination in the employment context. See42 U.S.C.
§ 1981a. There are no allegations in the case at bar that
so much as hint at this form of discrimination.
3. Section 1983
a. Claims Against the Officers
The plaintiff argues that the officers' alleged use of excessive
force against him violated his rights under the Fourteenth
Amendment. The defendants counter that an allegation of
excessive force used by police officers implicates the Fourth
Amendment's prohibition against unreasonable searches
and seizures, not the Fourteenth Amendment's protections.
Contrary to the defendants' claim, the Second Circuit has
recognized that the use of excessive force by police officers
can implicate the Fourteenth Amendment's guarantee of
substantive due process. As the court recently noted in
Hemphill v. Schott,“This court has held that outside the
context of an arrest, a plaintiff may make claims of excessive
force under § 1983 under the Due Process Clause of the
Fourteenth Amendment.”141 F.3d 412, 418 (2d Cir.1998)
(emphasis added) (citing Rodriguez v. Phillips, 66 F.3d 470,
477 (2d Cir.1995)); see also Tierney v. Davidson, 133 F.3d
189, 199 (2d Cir.1998) (“Plaintiffs do not assert that they were
arrested or seized, and therefore these [Section 1983] claims
fall outside the Fourth Amendment protections ... and are
governed instead by the Due Process Clause of the Fourteenth
Amendment.”) The plaintiff was neither arrested nor seized
on the night in question, and thus, a Fourteenth Amendment
analysis is appropriate.
*6 A four part test is employed to determine whether
an officer's use of force qualifies as excessive under the
Fourteenth Amendment—indeed, whether the alleged force
“shocks the conscience.” See Hemphill, 141 F.3d at 419;
Tierney, 133 F.3d at 199. These factors are: “(1) the need
for the application of force, (2) the relationship between the
need and the amount of force that was used, (3) the extent of
injury inflicted, and (4) 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.”Id. (citing
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).
Given the conflicting accounts of what exactly happened
outside of defendant Blinn's door in the early morning of
December 18, 1995—the plaintiff's allegations of a brutal
beating versus the defendants' view that no such incident took
place—it might appear at first blush that this factual dispute
would preclude summary judgment. However, the plaintiff's
alleged injuries that are supported by the objective hospital
records lead me to conclude that, as a matter of law, the force
—if any—used by the NYPD on the night in question was
at worst, de minimis, and insufficient to shock this Court's
conscience. See Tierney, 133 F.3d at 199 (granting summary
judgment against plaintiff's § 1983 claim where officers'
alleged conduct was “de minimis ” and “benign”).
To be sure, after the alleged altercation, the plaintiff returned
to his apartment and chose to call the First Precinct to
complain of the alleged incident. (Bove Aff. ¶ 3.) Defendant
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Fazzolari came to the plaintiff's apartment to document the
complaint, and it was at that time that the officer offered
to the plaintiff medical assistance. 12 The plaintiff declined,
and it was not until some time later that Bove, as a “nonurgent,” walk-in patient at the New York Downtown Hospital
emergency room, was registered for and sought medical
attention. (Curtis Decl. Ex. B.) Medical personnel conducted
an extensive examination of Bove, and concluded that the
only “injury” was a slight bruise to his head, for which he
was told to apply ice and take Motrin. (Id.) Although the
plaintiff complained of having been kicked in the shoulder
and elsewhere, no bruises were found. (Id.) A cervical spine xray failed to reveal any discernable injuries. Notwithstanding
the hospital's findings, Bove now contends that the injuries
resulted in “a double hernia, a herniated disc, a deviated
septum causing painful fluid to collect in my ear, damage
to my hearing, and damage to my eyesight.”(Bove Aff.
¶ 6.) The plaintiff also alleges that he has since been
operated on for “a double hernia, and hemorrhoids” and
that a third operation is required. These allegations are
completely contradicted by the hospital's records and, more
importantly, are unsupported by any evidence other than
the plaintiff's assertions. Indeed, notably absent from the
plaintiff's papers is any documentation as to his alleged
injuries. There are no affidavits from the plaintiff's treating
physicians or psychologists, no hospital records—in short,
nothing to substantiate that the plaintiff's current ailments
exist, let alone that the alleged “beating” by the NYPD was
the proximate cause of these injuries. All the record contains
for purposes of this motion are Bove's bald and conclusory
allegations which are insufficient to withstand a motion for
summary judgment. See Podell, 112 F.3d at 101;see also
International Minerals and Resources v. Pappas, 96 F.3d
586, 592 (2d Cir.1996) (“The mere scintilla of evidence in
support of the [non-movant's] position will be insufficient;
there must be evidence on which the jury could reasonably
find for the [non-movant].”) (citations omitted).
12
It was Fazzolari's testimony that the plaintiff at that time
showed no signs of physical injury. (BC Declaration at
¶ 5.)
b. Claims Against the City of New York
*7 The plaintiff's claim against the City of New York also
fail as a matter of law. It is well-settled that a municipality
may not be held liable under section 1983 on the basis
of respondeat superior. Monell v. Department of Social
Services, 436 U.S. 658 (1978). Instead, the plaintiff must
show that his or her constitutional rights were violated by acts
committed pursuant to “official policy” of the municipality.
Id. at 694; Turpin v. Mailet, 619 F.2d 196, 197 (2d Cir.1980).
This requirement was intended to distinguish acts of the
municipality from the acts of its employees, and thus to only
hold a municipality liable based upon actions for which it
is actually responsible. See Pembaur v. Cincinnati, 475 U.S.
469, 479–80 (1986).
Despite having not even pled a Monell claim, 13 nor having
conducted any Monell discovery, the plaintiff seeks to hold
the City of New York liable based on the alleged conduct of
the individual officers. Bove argues that “[t]he depositions
[of the police officers] together with the Mollen Commission
Report and the Report of Amnesty International of Violence
in the N.Y.P.D., inter alia, support a Monel [sic] claim against
the defendant City.”(Pl.'s Mem. Opp. Summ. J. at 5.) Both
reports were annexed to the plaintiff's submissions.
13
The plaintiff's proposed amended complaint hints at a
“negligent supervision” or “negligent training” policy
or custom claim. Paragraph 16 reads, “That upon
the appearance of the plaintiff at the entranceway
of the [sic] defendant Blinn's apartment, the officers
violated the training and procedures of the defendant
New York City Police Department.”(Proposed Am.
Compl.) Unfortunately for the plaintiff, “[t]he mere
assertion ... that a municipality has such a custom or
policy is insufficient in the absence of allegations of
fact tending to support, at least circumstantially, such
an inference.”Dwares v. City of New York, 985 F.2d 94,
100 (2d Cir.1993); see also Ricciuti v. N.Y.C. Transit
Authority, 941 F.2d 119, 124 (2d Cir.1991) (“our prior
cases suggest that an allegation of municipal policy or
custom would be insufficient if wholly conclusory”).
The plaintiff seeks to recover under Section 1983–based
allegations that the City has a policy or custom which
includes the use of excessive force by the NYPD, not for
damages based upon any type of coverup or concealment.
The two reports are therefore inapposite. The Mollen
Commission's findings fail to even hint at a policy or custom
of excessive force, but rather addressed what it saw as
pockets of corruption within specific precincts. The Amnesty
International Report deals with the alleged practice by police
of “overcharging” suspects—i.e. adding charges of additional
offenses to the charges that provided the basis for the suspects'
arrest—to cover up police misconduct, and is therefore
equally inapplicable here.
Without these two reports, the plaintiff relies on one alleged
incident of excessive force by the police. It is well-settled
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that “[a] single incident alleged in a complaint, especially if it
involved only actors below the policymaking level, generally
will not suffice to raise an inference of the existence of a
custom or policy.”Dwares, 985 F.2d at 100. Accordingly, the
complaint as to the City of New York is dismissed.
4. Section 1985 Claims
To prevail on a claim brought pursuant to § 1985(3), a
plaintiff must show: (1) that a conspiracy existed; (2) the
purpose of the conspiracy was to deprive, either directly or
indirectly, any person or class of persons of equal protection
of the laws, or of equal privileges and immunities under
the laws; (3) an act was committed in furtherance of the
conspiracy; and (4) “whereby another is injured in his person
or property.”42 U.S.C. § 1985(3). Moreover, the conspiracy
must also be motivated by “some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the
conspirators' action.”Mian, 7 F.3d at 1088 (citing United
Brotherhood of Carpenters, Local 610 v. Scott, 463 U.S. 825,
829 (1983)). Here, the complaint does not allege, nor does
the plaintiff set out to prove, that the alleged beating was
motivated by Bove's race or other class-based animus. See
id, 7 F.3d at 1088 (“an essential element to [a Section 1985
claim] is a requirement that the alleged discrimination took
place because of the individual's race”). Thus, the plaintiff's's
claims based on § 1985 must also be dismissed.
5. State Law Causes of Action
*8 The plaintiff also alleges two causes of action under
New York state law for “tortious assault” and “intentional
infliction.” New York's General Municipal Law §§ 50–e and
50–i require that a plaintiff asserting state law tort claims
against a municipality or its employees acting within the
scope of their employment must: (1) file a notice of claim
within 90 days of the incident giving rise to the plaintiff's
End of Document
claim, and (2) commence the suit within one year and
ninety days from the date upon which the cause of action
first accrues. N.Y. Gen. Mun. Law §§ 50–e and 50–i. The
plaintiff's cause of action accrued on December 18, 1995,
the date of the alleged assault. Although Bove timely filed a
notice of claim, his lawsuit was not filed until December 14,
1998, well after the one year and ninety day period proscribed
by the laws of New York. The plaintiff's state law causes of
action are therefore time-barred and dismissed. 14
14
Because the plaintiff's claims fall short on the merits, the
complaint as to defendant Blinn is similarly dismissed.
Indeed, her alleged participation is based on her entry
into a conspiracy to violate the plaintiff's civil rights.
To support a cause of action for conspiracy under
§ 1983 or otherwise, a plaintiff must show that the
defendants “acted in a willful manner, culminating in an
agreement ... that violated plaintiff's rights, privileges,
or immunities secured by the Constitution.”Ahlers v.
Carrillo, 1997 WL 167049, *3 (S.D.N.Y. April 9, 1997)
(citations omitted). As discussed herein, the plaintiff's
claim that his rights were violated fail as a matter of law,
and with it, so too do his claims against defendant Blinn
for her purported role in the conspiracy.
III. CONCLUSION
For the reasons stated above, the plaintiff's motion is
DENIED, and the defendants' motion is GRANTED in its
entirety. The Clerk of the Court is instructed to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1999 WL 595620
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
7
McGovern v. Spokane Police Dept., Not Reported in F.Supp.2d (2010)
2010 WL 1849012
2010 WL 1849012
Only the Westlaw citation is currently available.
United States District Court,
E.D. Washington.
Ronald L. McGOVERN, Plaintiff,
v.
SPOKANE POLICE
DEPARTMENT, et al., Defendants.
No. CV–08–378–LRS.
|
May 3, 2010.
Attorneys and Law Firms
Ronald L. McGovern, Colbert, WA, pro se.
Ellen M. O‘Hara, Spokane City Attorney's Office, Spokane,
WA, for Defendants.
ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
LONNY R. SUKO, Chief Judge.
*1 BEFORE THE COURT is the Defendants' Motion
For Summary Judgment (Ct.Rec.30). It is heard without oral
argument.
This is a 42 U.S.C. Section 1983 action in which the Plaintiff
claims he was falsely arrested by City of Spokane police
officers who used excessive force upon him in violation of his
federal constitutional rights. Plaintiff apparently also asserts
related state law claims. Furthermore, Plaintiff asserts his
rights under the Americans With Disabilities Act (ADA), 42
U.S.C. Section 12101 et seq., were violated. 1
1
These are the claims asserted in Plaintiff's Second
Amended Complaint. (Ct.Rec.17). Although Plaintiff did
file a Third Amended Complaint (Ct.Rec.26), he did so
without filing a motion and seeking leave of the court,
although he was instructed in an order (Ct.Rec.27) of the
necessity of doing so. Accordingly, the Third Amended
Complaint is not considered.
SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to avoid unnecessary
trials when there is no dispute as to the facts before the
court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.),
cert. denied,423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399
(1975). Under Fed.R.Civ.P. 56, a party is entitled to summary
judgment where the documentary evidence produced by
the parties permits only one conclusion.Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986); Semegen v. Weidner, 780 F.2d 727, 732 (9th
Cir.1985). Summary judgment is precluded if there exists a
genuine dispute over a fact that might affect the outcome of
the suit under the governing law. Anderson, 477 U.S. at 248.
The moving party has the initial burden to prove that
no genuine issue of material fact exists. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party
has carried its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt
as to the material facts.”Id. The party opposing summary
judgment must go beyond the pleadings to designate specific
facts establishing a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986).
In ruling on a motion for summary judgment, all inferences
drawn from the underlying facts must be viewed in the light
most favorable to the nonmovant.Matsushita, 475 U.S. at
587. Nonetheless, summary judgment is required against a
party who fails to make a showing sufficient to establish an
essential element of a claim, even if there are genuine factual
disputes regarding other elements of the claim. Celotex, 477
U.S. at 322–23.
FALSE ARREST
Officer James Muzatko had reasonable suspicion to stop
the vehicle the Plaintiff was driving. An officer must have
“a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause. United States v. Sokolow, 490 U.S. 1, 7,
109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry v. Ohio,
392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Officer Muzatko had developed information that a vehicle
bearing a certain license plate he had observed coming from a
location known for criminal activity was registered to a felony
warrant suspect, “Roger C,” who had a felony warrant out of
Wenatchee under the alias “Rodney C.” This was the vehicle
Plaintiff turned out to be driving on the morning he was
stopped by Officer Muzatko. According to Officer Muzatko,
the driver of the vehicle (who turned out to be the Plaintiff)
matched the general physical description of “Roger C.”
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
McGovern v. Spokane Police Dept., Not Reported in F.Supp.2d (2010)
2010 WL 1849012
*2 Under the circumstances, it was appropriate for Officer
Muzatko to inquire regarding Plaintiff's identity. Questions
concerning a suspect's identity are a routine and accepted
part of Terry stops. Hiibel v. Nevada, 542 U.S. 177, 185–89,
124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Plaintiff denied he
was “Roger C” and Officer Muzatko then asked the Plaintiff
for identification. Plaintiff indicated he did not have any
identification and that he did not have a driver's license either.
Plaintiff then identified himself as “Ronald McGovern.”
Officer Muzatko ran Plaintiff's name through the computer,
along with the Plaintiff's date of birth and other identifying
information, and learned the Plaintiff had a suspended driver's
license. Officer Muzatko then informed the Plaintiff he was
under arrest for misdemeanor “Driving with a Suspended
License in the 3rd degree.”
The Fourth Amendment requires law enforcement officers
to have probable cause before making a warrantless arrest.
Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587,
69 L.Ed.2d 340 (1981).“Probable cause to arrest exists
when officers have knowledge or reasonably trustworthy
information sufficient to lead a person of reasonable caution
to believe that an offense has been or is being committed
by the person being arrested.”United States v. Lopez, 482
F.3d 1067, 1072 (9th Cir.2007). An arrest is unlawful unless
there is probable cause to believe a specific criminal statute
has been or is being violated.Devenpeck v. Alford, 543 U.S.
146, 152, 124 S.Ct. 588 (2004). Because probable cause is a
wholly objective “reasonable officer” standard, the officer's
subjective motivation is irrelevant. Whren v. United States,
517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
Here, Officer Muzatko clearly had probable cause to arrest
the Plaintiff for driving with a suspended license considering
the offense had been committed in the officer's presence. The
offense of driving on a suspended license in the third degree
is a misdemeanor for which, in the State of Washington, the
driver may be arrested.State v. Perea, 85 Wash.App. 339,
341–42, 932 P.2d 1258 (1997).
The stop of the vehicle the Plaintiff was driving, and the
arrest of Plaintiff for driving with a suspended license,
were constitutionally proper. There are no genuine issues of
material fact to preclude the court from making such findings
as a matter of law. 2
2
The search of Plaintiff's vehicle incident to the arrest was
constitutionally proper under the law prevailing at the
time, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860,
69 L.Ed.2d 768 (1981).
EXCESSIVE FORCE
Excessive force claims are analyzed under the Fourth
Amendment's “objectively reasonable” test. Graham v.
Connor, 490 U.S. 386, 394–95, 109 S.Ct. 1865, 104 L.Ed.2d
443, S.Ct. (1989).“ ‘[T]he right to make an arrest ...
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.’ “ Muehler
v. Mena, 544 U.S. 93, 99, 125 S.Ct. 1465, 161 L.Ed.2d
299 (2005), quoting Graham, 490 U.S. at 396. The force,
however, must be “objectively reasonable” in light of the
facts and circumstances confronting the officers, without
regard to their underlying intent or motivation. Graham, 490
U.S. at 397. The use of handcuffs is warranted in inherently
dangerous settings to minimize the risk of harm to suspects,
officers and innocent third parties. Muehler, 544 U.S. at 100.
Alleged injuries reflecting only minimal force are insufficient
to qualify as constitutionally excessive or overcome the
officers' entitlement to qualified immunity. Nolin v. Isbell,
207 F.3d 1253, 1258 (11th Cir.2000) (Police officer's use
of force against arrestee was de minimis, and thus, officer
did not lose his qualified immunity from arrestee's § 1983
claim alleging excessive force; officer grabbed arrestee and
shoved him a few feet against a vehicle, pushed his knee
into the arrestee's back and pushed arrestee's head against
the van, searched arrestee's groin area in an uncomfortable
manner, and placed the arrestee in handcuffs); Bowles v. State,
37 F.Supp.2d 608, 612 (S.D.N.Y.1999) (In § 1983 action,
arrestee failed to state claim of use of excessive force, where
arrestee merely alleged that he was pushed and shoved by
officer during search incident to arrest).
*3 The record shows that Officer Muzatko, with the
assistance of Officer David Grenon 3 , used a standard
handcuffing (“double cuff”) procedure on the Plaintiff which
was justified under the circumstances and which entailed
a de minimis use of force. Likewise, the record shows
the subsequent removal of the handcuffs was pursuant to
standard procedure and entailed only a de minimis use of
force. 4 Plaintiff has not raised a genuine issue of material
fact that the officers employed excessive force and has
not produced any medical evidence establishing he suffered
injuries at that time which were more serious than what would
be expected from a de minimis use of force. This de minimis
use of force was reasonable and not excessive. Furthermore,
even if the force used was excessive in some respect, the
individual officers would be entitled to qualified immunity
from damages on the basis that a reasonable officer would
have believed the force used was justified and not excessive.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
McGovern v. Spokane Police Dept., Not Reported in F.Supp.2d (2010)
2010 WL 1849012
There was no clearly established law which would have put
the officers on notice that the force used by them during
these standard handcuffing and “uncuffing” procedures was
excessive and in violation of Plaintiff's constitutional rights.
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.”Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). Even assuming the
existence of a constitutional violation, an officer is entitled to
qualified immunity if the constitutional right was not clearly
established at the time of the alleged violation. Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001).
3
Officer Grenon necessarily must be the “Officer Eugene”
referred to in Plaintiff's Second Amended Complaint.
4
Plaintiff's Second Amended Complaint, which is the
complaint of record, appears to contend the alleged
excessive force occurred when the handcuffs were
removed.
STATE LAW CLAIMS
To the extent Plaintiff is asserting state law claims for
false arrest and excessive force (assault), those claims are
barred by the applicable two year statute of limitations. RCW
4.16.100(1). The incident occurred on December 5, 2005 and
Plaintiff did not file his complaint until December 5, 2008. 5
5
The federal Section 1983 claims are timely since
the three-year limitation period specified in RCW
4.16.080(2) pertains to those claims. Rose v. Rinaldi, 654
F.2d 546 (9th Cir.1981).
To the extent Plaintiff alleges a state law claim of “outrage,” it
appears it is not time-barred because the three-year limitation
period specified in RCW 4.16.080(2) applies. Cox v. Oasis
Physical Therapy, PLLC, 153 Wash.App. 176, 192, 222 P.3d
119 (2009). The elements of “outrage” are: 1) extreme and
outrageous conduct; 2) intentional or reckless infliction of
End of Document
emotional distress, and 3) actual result to the plaintiff of
severe emotional distress.Brower v. Ackerley, 88 Wash.App.
87, 98, 943 P.2d 1141(1997). Based on the undisputed facts
of record, and the court having found as a matter of law there
was no false arrest of the Plaintiff and excessive force was
not used upon him, the court finds as a matter of law the
officers did not engage in extreme and outrageous conduct
and intentionally or recklessly inflict emotional distress upon
the Plaintiff. Moreover, there is no evidence in the record
establishing that Plaintiff suffered severe emotional distress.
ADA CLAIM
*4 There is no evidence in the record raising a genuine
issue of material fact as to whether Plaintiff was “excluded
from participation in or denied the benefit of [a] public
entity's services, programs, or activities, or was otherwise
discriminated against by [a] public entity” by reason of a
disability. 42 U.S.C. Section 12132. Because Plaintiff was
legitimately arrested, and force was reasonably used upon
him, it necessarily follows that Plaintiff was not discriminated
against because of any physical disability.
CONCLUSION
Defendants' Motion For Summary Judgment (Ct.Rec.30) is
GRANTED.Defendants are awarded judgment on all claims
asserted by Plaintiff in his Second Amended Complaint.
Because no constitutional violation was committed by the
individual officers, there can be no liability on the part of the
City of Spokane or its police department. City of Los Angeles
v. Heller, 475 U.S. 796, 798–99, 106 S.Ct. 1571, 89 L.Ed.2d
806 (1986).
IT IS SO ORDERED.The District Court Executive is
directed to enter judgment accordingly and forward copies
of the judgment and this order to Plaintiff and to counsel for
Defendants.
All Citations
Not Reported in F.Supp.2d, 2010 WL 1849012
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Mercer-Smith v. New Mexico Children, Youth and Families Dept., 416 Fed.Appx. 704...
416 Fed.Appx. 704
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
[2] limitations period on parents' § 1983 claims against
physician began to run a full seven years before parents filed
suit.
Affirmed.
West Headnotes (7)
[1]
James Alistar MERCER–SMITH; Janet
Mercer–Smith, Plaintiffs–Appellants,
v.
NEW MEXICO CHILDREN, YOUTH AND
FAMILIES DEPARTMENT, Defendant,
and
Limitations period on parents' § 1983 claims
against state employees began to run before
court ruled on their motion seeking to hold
those employees in contempt for violating state
court's original order placing their children
in foster care; contempt motion contained so
many specific allegations of wrongdoing that it
was clear that parents were on notice by time
they filed motion that employees violated their
constitutional rights. 42 U.S.C.A. § 1983.
Deborah Hartz; Mary Dale Bolson; Dorian Dodson;
Rebecca Liggett; Angela Dominguez; Roland
Trujillo; Carmella Alcon; Veronica Vallejos;
Lou Ann Hoeppner; Teresa Vigil; Flora Aragon;
Kimberly Crespin; Beth Reich, all in their individual
and official capacities, Defendants–Appellees.
No. 10–2053.
|
March 21, 2011.
Cases that cite this headnote
[2]
Synopsis
Background: Parents filed suit against state agency, certain
of its employees, and physician who reported her suspicions
that parents' girls had been sexually abused, alleging federal
civil rights violations, and various state law claims based
on contention that their family unit had been destroyed by
misconduct. The United States District Court for the District
of New Mexico granted individual defendants' motion to
dismiss and physician's motion for summary judgment, and
parents appealed.
Limitation of Actions
Concealment of Cause of Action
Limitation of Actions
Suspension or stay in general; equitable
tolling
Limitations period on parents' § 1983 claims
against state employees was not equitably tolled
until state court ruled on their contempt motion,
until which time parents did not know of the
full effect of state employees' actions in violation
of state court's original order placing their
children in foster care; even if state employees
fraudulently concealed their behavior, parents'
contempt motion indicated that they were aware
that employees were acting improperly. 42
U.S.C.A. § 1983.
Holdings: The Court of Appeals, Mary Beck Briscoe, Chief
Judge, held that:
[1] limitations period on parents' § 1983 claims against state
employees began to run before court ruled on their motion
seeking to hold those employees in contempt for violating
state court's original order placing their children in foster care,
and
Limitation of Actions
Civil rights
Cases that cite this headnote
[3]
Limitation of Actions
Liabilities Created by Statute
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Mercer-Smith v. New Mexico Children, Youth and Families Dept., 416 Fed.Appx. 704...
Doctrine of continuing violations, under which
a plaintiff may avoid the statute of limitations
when the defendant has acted pursuant to a
pattern or longstanding policy or practice of
constitutional violations, does not apply to §
1983 claims. 42 U.S.C.A. § 1983.
authorities her suspicions that parents' girls
had been sexually abused, began to run a full
seven years before parents filed suit; at such
time, parents knew they that physician had
reported father's alleged abuse, were aware of
the medical foundation upon which physician
based her expert opinion, and were aware of
the reports of other psychologists who disagreed
with physician's conclusions. 42 U.S.C.A. §
1983.
8 Cases that cite this headnote
[4]
Federal Civil Procedure
Amendments by briefs or motion papers
Cases that cite this headnote
Federal Civil Procedure
Pleading over
Because of parents' lack of compliance with New
Mexico's local rules requiring parties seeking
leave to amend to file a motion stating with
particularity the grounds for amendment, file a
separate brief in support of the motion to amend,
and attach a proposed amended complaint to the
motion to amend with applicable rules, district
court did not abuse its discretion by not granting
parents leave to amend their complaint; parents
simply added at the end of their opposition to
motion to dismiss a blanket request for leave to
amend if the district court found the complaint
to be inadequate. U.S.Dist.Ct.Rules N.M., Civil
Rules 7.1, 7.5, 15.1.
[7]
Federal Courts
Environment and health
Because the district court had previously
dismissed parents' federal civil rights claims
against physician, federal question jurisdiction
was lacking over state law claims based on
physician's alleged wrongful actions in reporting
to state authorities her suspicions that parents'
girls had been sexually abused.
Cases that cite this headnote
Attorneys and Law Firms
1 Cases that cite this headnote
[5]
Limitation of Actions
Amendment of Pleadings
Amendment of parents' complaint against
state employees alleging federal civil rights
violations, and various state law claims would be
futile since amendment could not cure statuteof-limitations defect; no matter what allegations
the parents added to their amended complaint,
fact remained that they knew of the employees'
alleged unlawful actions when they filed their
motion for contempt four years earlier.
3 Cases that cite this headnote
[6]
Limitation of Actions
Civil rights
*705 Dan Cron, Cron Law Firm, Grey W. Handy, Esq.,
Stephen J. Lauer, Esq., Larry D. Maldegen, Esq., Comeau,
Maldegen, Templeman & Indall, LLP, Santa Fe, NM, for
Plaintiffs–Appellants.
Edward W. Shepherd, Christopher P. Winters, Esq., Allen,
Shepherd, Lewis, Syra & Chapman, P.A., Albuquerque, NM,
for Defendants–Appellees.
Beth Reich, all in their individual and Official Capacities,
Allen, Shepherd, Lewis, Syra & Chapman, PA, Albuquerque,
NM, pro se.
Timothy V. Flynn–O'Brien, Esq., Timothy V. Flynn–O'Brien,
Attorney at Law, Albuquerque, NM, for Defendants–
Appellees/Defendant.
Before BRISCOE, Chief Judge, EBEL and O'BRIEN, Circuit
Judges.
Limitations period on parents' § 1983 claims
against physician, who reported to state
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Mercer-Smith v. New Mexico Children, Youth and Families Dept., 416 Fed.Appx. 704...
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R.App. P. 32.1 and
10th Cir. R. 32.1.
admitted to the psychiatric ward of an area hospital. While
in the hospital, Rachel attended group therapy sessions
and began taking different medication. Although Rachel
denied that she had ever been the victim of sexual abuse,
the attending physician recommended that she reside with
her nanny because he believed “parental stress might be
contributing to [her] condition.” Id. at 44. The Mercer–Smiths
agreed to this course of action, and in late January 2001,
Rachel was released from the psychiatric ward and placed in
the custody of her nanny.
MARY BECK BRISCOE, Chief Judge.
**1 Plaintiffs James Mercer–Smith and Janet Mercer–
Smith appeal from the district court's grant of the individual
defendants' motion to dismiss and defendant Dr. Beth *706
Reich's motion for summary judgment. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
I
Factual Background
Dr. James Mercer–Smith and Dr. Janet Mercer–Smith, both
of whom work at the Los Alamos National Laboratory in New
Mexico, have three daughters, Julia, Rachel, and Alison. The
Mercer–Smiths adopted Julia in 1987. During the adoption
proceedings, Janet gave birth to Rachel, who is eight months
younger than Julia. In 1992, Janet gave birth to Alison.
In 1989, when Julia was two or three years old, she
began having significant behavioral problems that required
treatment by medical professionals. While Julia received
professional counseling, a former babysitter and Janet
Mercer–Smith's mother began claiming that James Mercer–
Smith had sexually abused his daughters. In 1989 and again in
1992, Janet's mother complained to the New Mexico Children
Youth and Families Department (“CYFD”) regarding James'
alleged sex abuse. CYFD investigated these allegations and
ultimately concluded that Janet's mother's allegations were
“unsubstantiated” and “unconfirmed.” ROA Vol. 1, at 43–44.
In 2000, then twelve-year old Rachel required medical
treatment for major depression. The Mercer–Smiths took
Rachel to Dr. Beth Reich, who placed Rachel on antidepressant medication. Rachel's condition began to worsen,
however, and the Mercer–Smiths became concerned that
she was having suicidal thoughts. The Mercer–Smiths again
contacted Dr. Reich, who made arrangements to have Rachel
On February 7, Rachel's nanny called the Mercer–Smiths
and told them that Rachel was having another psychiatric
episode. The Mercer–Smiths immediately took Rachel back
to Dr. Reich, who discussed with them the 1990 and 1992
allegations of sexual abuse. Dr. Reich then met with Rachel
and Julia together and asked them if their father had ever
sexually abused them. Rachel and Julia “did not recall any
actual sexual abuse.” Id. “During the drive home with their
nanny, however, the girls 1 ... became concerned that they
may have been sexually abused by [their father] as children.”
Id. The nanny and the children immediately returned to Dr.
Reich's home, where the girls “reported memories ... that
when they were ages four to seven, they would sometimes get
into bed at night with [their father] ... and [he] would touch
them all over including their private parts.” Id. at 45.
1
The record is not clear on this issue, but it appears that
Julia was also living with the nanny during this time.
**2 Dr. Reich contacted CYFD that night. A few hours
later, at about 3:30 a.m., CYFD representatives went to the
Mercer–Smiths' home, spoke with the family, and removed
Alison (then eight years old) from the home and placed
her with the *707 nanny pending further investigation. On
February 20, CYFD officials conducted interviews of all
three daughters at a “safe house.” There, Julia and Rachel
told the medical examiner that their father touched them in
inappropriate ways. Alison, however, denied that her father
ever engaged in such conduct with her. 2
2
Shortly after taking Alison to a safe house, CYFD
released her to the custody of her parents. Unlike Julia
and Rachel, CYFD never obtained custody of Alison.
In March 2001, Julia was referred to a second psychiatrist,
who conducted five therapy sessions with her. He found Julia
to be “untruthful and manipulative and did not believe her
sexual abuse claims.” Id. He was later removed from the
case by CYFD, and Dr. Reich was reinstated as the girls'
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Mercer-Smith v. New Mexico Children, Youth and Families Dept., 416 Fed.Appx. 704...
psychiatrist. Following additional therapy, Dr. Reich reported
that Julia and Rachel recalled memories indicating that they
might have been raped by their father.
James Mercer–Smith “categorically denied ever touching
any of his daughters in an inappropriate manner.” Id. at
46. Nonetheless, James submitted to psychological testing,
including an Abel Screen and a Penile Plethysmography.
“Neither of these laboratory tests indicated that [James] was
sexually attracted to children.” Id. In addition, the psychiatrist
who examined him concluded that there was no evidence that
he suffers from pedophilia.
During the investigation period, CYFD hired an independent
psychologist to render an opinion regarding Julia and Rachel's
situation. The independent psychologist reviewed Janet's
mother's allegations of sexual abuse in 1990 and 1992, each
psychiatric evaluation of Julia and Rachel, and the results
of James' psychological tests. He also conducted follow-up
interviews with every member of the Mercer–Smith family,
their nanny, and the other psychologists who worked with
them. The independent psychologist ultimately concluded
that “except for the claims of [Julia] and [Rachel], there
[was] no evidence to support the allegations of sexual abuse”
against James Mercer–Smith. Id. He therefore recommended
that CYFD “facilitate a process of reconciliation and
reunifying the family as soon as possible.” Id.
Despite this report, CYFD moved forward with child custody
hearings in New Mexico state court, including possible
criminal charges against James for child sexual abuse. A few
weeks before the hearing, Julia and Rachel's nanny informed
the Mercer–Smiths that the girls did not want to testify in
court. After being told she would have to testify, Rachel
apparently “took a large overdose of ibuprofen requiring her
stomach to be pumped at the hospital.” Id. at 47. The nanny
also told the Mercer–Smiths that she was fearful Julia “might
harm herself or run away to avoid testifying.” Id.
On August 30, 2001, James Mercer–Smith entered a plea of
no-contest to the charge that he “touched his children Julia
and Rachel in a way that made them feel uncomfortable and
which they reasonably perceived as sexual.” ROA Vol. 2,
at 36. Janet also entered a plea of no contest on the charge
that she “knew or should have known that her husband ...
touched ... Julia and Rachel in a way that made them feel
uncomfortable and which they reasonably perceived as sexual
and she did not take reasonable steps to protect [them] ... from
further harm.” Id. at 37. The Mercer–Smiths allege they pled
no contest to these charges because their daughters did not
wish to testify and because a psychologist recommended they
not confront the girls on this matter. The state court accepted
James and Janet's no-contest *708 pleas, determined that
Julia and Rachel were “abused children,” and ordered the state
to take legal custody of the children “for an indeterminate
period [of] up to two years.” Id. at 38.
**3 For much of the two year period in which the Mercer–
Smiths lost custody of Julia and Rachel, the girls were placed
in the Casa Mesita Group Home. Gay Farley, the former
executive director of the home, and Jennifer Schmierer, a
former counselor at the home, both worked with Julia and
Rachel at Casa Mesita. In June 2003, CYFD petitioned the
state court to approve a proposed plan to transfer Julia to
foster care with the Schmierer family and Rachel to foster
care with the Farley family. The Mercer–Smiths opposed
this plan because placement with these families would create
an improper counselor/patient relationship and because these
families were opposed to reunification of the Mercer–Smith
family.
The state court denied CYFD's motion in November 2003.
The court cited to the Code of Ethics for Occupational and
Professional Licensing, Counselors, and Therapists, which
provides that “licensed or registered individuals shall not
enter into a sexual or other dual relationship with a client.”
ROA Vol. 1, at 60. The state court concluded that because
Gay Farley and Jennifer Schmierer had counseled with Julia
and Rachel at the Mesita Group Home, they were not eligible
to act as the girls' foster parents. CYFD later obtained the
court's consent to place Julia and Rachel in the home of the
Ritter family, a family that was willing and able to serve as a
foster family for the girls. 3
3
As far as the record indicates, the Mercer–Smiths did
not object to having their daughters placed in the Ritters'
home.
Over the next several months, the Mercer–Smiths became
suspicious that their daughters were actually living with the
Farley and Schmierer families, rather than with the Ritters.
On July 29, 2004, the Mercer–Smiths filed a motion to hold
CYFD and a number of its employees in contempt of court
for ignoring the state court's order regarding placement of the
children. In their motion, the Mercer–Smiths alleged CYFD
had “created a sham to mask” the fact that the Farleys and
Schmierers were acting as the true foster parents of Rachel
and Julia. ROA Vol. 2, at 168.
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On January 3, 2008 (more than three years after the
Mercer–Smiths filed their contempt motion and after Julia
and Rachel attained the age of majority), the state court
determined that CYFD had violated the court's order (1)
by permitting the Farleys and Schmierers to “continue ...
providing transportation to and from school for the girls,
taking Rachel to dance class, and Julia to Santa Fe for her
therapy”; and (2) by asking the Ritters to “provide a place
for [the girls] to sleep, with minimal oversight required.”
ROA Vol. 1, at 78. The state court further stated that “[t]he
designation by CYFD of the Ritters as ‘foster parents' was
done deliberately by CYFD for the purposes of concealing
from the Court and James and Janet Mercer–Smith the fact
that Jennifer and Eric Schmierer served the function of being
foster parents for Julia ... and [that] Gay and Dwain Farley
served the function of being foster parents for Rachel.” Id. at
87.
Procedural History
On April 7, 2009, the Mercer–Smiths filed suit in the
district court against CYFD; CYFD employees Deborah
Hartz, Mary–Dale Bolson, Dorian Dodson, Rebecca *709
Liggett, Angela Dominguez, Roland Trujillo, Carmella
Alcon, Veronica Vallejos, Lou Ann Hoeppner, Teresa Vigil,
Flora Aragon, and Kimberly Crespin 4 (“the individual
defendants”); and Dr. Beth Reich. The Mercer–Smiths named
the individual defendants and Dr. Reich in their individual
and official capacities.
4
Veronica Vallejos and Lou Ann Hoeppner were never
served with process, and they have not made appearances
in this case. The parties agree that Vallejos and Hoeppner
are now non-parties to this action.
**4 The Mercer–Smiths alleged the following claims
against all defendants: (1) violation of 42 U.S.C. § 1983
(count I); (2) civil conspiracy under 42 U.S.C. § 1985 (count
II); (3) continuing violations under § 1983 and § 1985 (count
III); (4) negligence, defamation, malicious abuse of process,
professional negligence, and medical malpractice under the
New Mexico Tort Claims Act (count IV); state common
law claims for intentional infliction of emotional distress,
invasion of privacy, defamation, professional negligence,
negligence, medical malpractice, and malicious abuse of
process (count V); and compensatory and punitive damages
(count VI). 5
5
Count VI is the only count the district court did not
ultimately dismiss. The parties agree, however, that
compensatory and punitive damages are remedies, not
causes of action.
On February 8, 2010, the district court granted the individual
defendants' Motion for Qualified Immunity and to Dismiss
and dismissed counts I, III, IV, and V without prejudice. The
district court did so because “[a]ll claims against the State
Defendants ... appear to have expired under the applicable
statute of limitations.” ROA Vol. 1, at 239.
Also on February 8, the district court granted Dr. Reich's
motion for summary judgment on the Mercer–Smiths' §
1983 claim (counts I and III). The court granted the motion
and dismissed these claims with prejudice because (1) the
Mercer–Smiths had not brought forth evidence indicating
that Dr. Reich violated their § 1983 rights; (2) Dr. Reich
is immune from suit; (3) Dr. Reich is not a state actor and
therefore not liable under § 1983; and (4) the statute of
limitations bars the Mercer–Smiths' § 1983 claim against
Dr. Reich. The district court also sua sponte dismissed
with prejudice the Mercer–Smiths' claims under the New
Mexico Tort Claims Act (count IV), and it dismissed without
prejudice their claims under New Mexico common law (count
V).
The Mercer–Smiths timely appealed the district court's grant
of the individual defendants' motion to dismiss and Dr.
Reich's motion for summary judgment.
II
Standard of Review
The court reviews both the grant of a motion to dismiss and
the grant of a motion for summary judgment under a de
novo standard. PJ v. Wagner, 603 F.3d 1182, 1192–93 (10th
Cir.2010); Christy Sports, LLC v. Deer Valley Resort Co.,
Ltd., 555 F.3d 1188, 1191 (10th Cir.2009).
Analysis
A. The Individual Defendants' Motion to Dismiss
The Mercer–Smiths argue the district court erred in
dismissing their § 1983 claim and state claims against the
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individual defendants. We address the federal claim and the
state claims in turn.
1. Section 1983
The district court held that the Mercer–Smiths' § 1983 claim
was barred by the statute of limitations. The statute of
limitations *710 in a § 1983 claim “is drawn from the
personal-injury statute of the state in which the federal district
court sits.” Mondragon v. Thompson, 519 F.3d 1078, 1082
(10th Cir.2008). In New Mexico, that statute of limitations is
three years. O'Connor v. St. John's College, 290 Fed.Appx.
137, 140 (10th Cir.2008) (unpublished). The district court
held that the statute of limitations had run on the Mercer–
Smiths' § 1983 claim because they filed suit on April 7, 2009,
but knew of the facts giving rise to their claim against the
individual defendants when they filed their motion in 2004
to hold them in contempt. Noting that the Mercer–Smiths'
claims in this lawsuit “are based on the same conduct as the[ir]
2004 contempt motion,” the district court held that “it [was]
clear” the Mercer–Smiths were “fully aware ... [of the] facts in
2004 ... that should have put them on notice” regarding their
claims. ROA Vol. 1, at 236.
**5 The Mercer–Smiths claim the district court's ruling was
incorrect based on the doctrines of (1) accrual, (2) equitable
tolling, and (3) continuing violation. We are not persuaded by
any of these assertions.
a. Accrual
“[F]ederal law governs the question of accrual of federal
causes of action, and thus, dictates when the statute of
limitations begins to run for purposes of § 1983.” Smith v. City
of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1154 (10th
Cir.1998) (citations omitted). “A civil rights action accrues
when the plaintiff knows or has reason to know of the injury
which is the basis of the action.” Id. (quoting Baker v. Bd.
of Regents, 991 F.2d 628, 632 (10th Cir.1993)). “Since the
injury in a § 1983 case is the violation of a constitutional
right, such claims accrue when the plaintiff knows or should
have known that his or her constitutional rights have been
violated.” Id. (citations and quotation omitted). “This requires
the court to identify the constitutional violation and locate it
in time.” Id. (citation and quotation omitted).
The Mercer–Smiths argue the district court erred in
dismissing their § 1983 claim because the claim did not
accrue until 2008 when the state court issued its contempt
order, thereby “confirming [that] the family unit had been
destroyed by unconstitutional conduct.” 6 Aplt. Op. Br. at
31. According to the Mercer–Smiths, while they “may have
entertained suspicions of misconduct” by the defendants prior
to 2008, they were not on notice of such conduct until after
the state court issued its order. Id.
6
We note that the Mercer–Smiths also claim the district
court erred in relying on the substance of their contempt
motion to determine that the statute began to run in 2004.
According to the Mercer–Smiths, the district court could
not properly rely on the contempt motion because they
did not attach it to their complaint. This argument fails.
When a document is “referred to in the complaint and is
central to the plaintiff's claim, a defendant may submit an
indisputably authentic copy of the court to be considered
on a motion to dismiss.” GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir.1997). The Mercer–Smiths alleged in the complaint
that “CYFD's and its agents' conduct continued to be
in flagrant violation of the court's orders, resulting in
the filing of a contempt motion by the Mercer–Smiths.”
ROA, Vol. 1 at 10. Because the Mercer–Smiths referred
to the 2004 contempt motion in their complaint and
because the motion is central to the Mercer–Smiths'
claims, it was proper for the district court to consider it
in ruling on the individual defendants' motion to dismiss.
[1] We are not persuaded by this argument because the
record indicates the Mercer–Smiths knew of the individual
defendants' unlawful actions no later than 2004 and were
therefore on notice that *711 their constitutional rights
may have been violated. For one, the very fact that the
Mercer–Smiths filed a motion seeking to hold the individual
defendants in contempt indicates that they believed the
individual defendants were violating the state court's original
placement order. In addition, the factual assertions the
Mercer–Smiths make in their contempt motion indicate
they knew in 2004 that the Farleys and Schmierers were
improperly involved in their daughters' lives. The Mercer–
Smiths cite specific examples in their motion of incidents
which caused them to believe the Farleys and Schmierers
were disregarding the state court's order that they not act
as the girls' foster parents. For example, the Mercer–Smiths
allege that from October to December 2003, Alison would
frequently meet her sisters at various restaurants and see Julia
arriving and leaving in a car driven by Mr. or Mrs. Schmierer
and Rachel arriving and leaving with Mr. or Mrs. Farley.
ROA Vol. 2, at 162–63. In addition, the Mercer–Smiths allege
that on November 11, they personally saw the Schmierers and
Farleys drop off Julia and Rachel at a restaurant to have lunch
with Alison. Id. at 162.
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**6 The 2004 contempt motion further indicates that
the Mercer–Smiths acted affirmatively to confirm their
suspicions. First, they allege that James “had a check done” to
determine the origins of two unknown phone numbers from
which Julia and Rachel's cell phones had been called. Id. at
162–63. According to the Mercer–Smiths, one phone number
belonged to Eric Schmierer and the other belonged to Gay
Farley. Id. In addition, the Mercer–Smiths hired a private
investigator to follow the Schmierers and Farleys. According
to the Mercer–Smiths, the private investigator discovered that
each morning the Schmierers picked up Julia from the Ritters'
house and took her to school, while the Farleys picked up
Rachel every morning and took her to school. Id. at 164–66.
In short, the Mercer–Smiths' contempt motion contains so
many specific allegations of wrongdoing that it is clear they
were on notice in 2004 that the individual defendants violated
their constitutional rights. Smith, 149 F.3d at 1154. The
Mercer–Smiths allege facts based on their own observations,
the work of their private investigator, and statements by
their youngest daughter, Alison. Because they were aware of
these facts, the Mercer–Smiths cannot reasonably argue that
they were not on notice regarding their constitutional claim
against the individual defendants until the state court issued
its contempt order in 2008.
b. Equitable Tolling
[2] The Mercer–Smiths also argue that even if the accrual
period started prior to 2008, their claims should not be timebarred because of the doctrine of equitable tolling. “[S]tate
law governs the application of tolling in a [federal] civil
rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217
(10th Cir.2004). Under New Mexico law, equitable tolling
(also known as fraudulent concealment) tolls the statute
of limitations “only when the plaintiff does not discover
the alleged [wrong] within the statutory period as a result
of the defendant's fraudulent concealment.” Tomlinson v.
George, 138 N.M. 34, 116 P.3d 105, 106 (2005). Thus, “if a
plaintiff discovers the injury within the time limit, fraudulent
concealment does not apply because the defendant's actions
have not prevented the plaintiff from filing the claim within
the time period and the equitable remedy is not necessary.”
Id. at 111.
The Mercer–Smiths allege the district court should have
applied the doctrine of equitable tolling because they
“could ... prove that they lacked essential information
necessary to appreciate the existence *712 and cause of
the [defendants'] constitutional violation[s].” Aplt. Op. Br.
at 37. We are not persuaded by this argument because
the Mercer–Smiths have not specifically alleged that the
individual defendants concealed from them the fact that the
Farleys and Schmierers were the de facto foster parents for
Julia and Rachel. Instead, the Mercer–Smiths simply allege
that they did not know of the full effect of the Farleys and
Schmierers' actions until 2008, when the state court ruled on
their contempt motion. In the absence of an assertion that
the defendants fraudulently concealed information from the
Mercer–Smiths, equitable tolling does not apply to this case.
See Tomlinson, 116 P.3d at 106.
**7 Moreover, even if the individual defendants
fraudulently concealed their behavior, the Mercer–Smiths'
2004 contempt motion indicates that they were aware the
individual defendants were acting improperly. As noted,
the Mercer–Smiths allege that they saw the Farleys and
Schmierers dropping their daughters off at a restaurant, that
they traced phone calls from the Farleys and Schmierers to
their daughters' cell phones, and that their private investigator
saw the Farleys and Schmierers pick up the girls from the
Ritters' home and take them to school. These allegations are
sufficient to indicate that the Mercer–Smiths knew of the
individual defendants' unlawful behavior. The doctrine of
equitable tolling therefore does not apply to this case. See id.
at 111 (a plaintiff cannot claim the benefits of the equitable
tolling doctrine if he or she discovers the injury within the
statutory time period).
c. Continuing Harm
[3] Finally, the Mercer–Smiths allege the district court erred
by declining to apply the doctrine of continuing violations.
Under this doctrine, a plaintiff may avoid the statute of
limitations when the defendant has acted pursuant to a
pattern or longstanding policy or practice of constitutional
violations. E.g., Robinson v. Maruffi, 895 F.2d 649, 655
(10th Cir.1990). The Mercer–Smiths' argument clearly fails
because the doctrine of continuing violations does not apply
to § 1983 claims. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th
Cir.1994) (holding that the doctrine of continuing violations
does not “extend[ ] ... to a § 1983 claim”); see also Thomas
v. Denny's, Inc., 111 F.3d 1506, 1514 (10th Cir.1997) (The
doctrine of continuing violations applies to Title VII claims
because “of the need to file administrative charges,” but does
not apply to claims that do “not require [the] filing of such
charges before a judicial action may be brought.”).
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2. State Claims
In addition to dismissing the Mercer–Smiths' § 1983
claim against the individual defendants, the district court
dismissed their state law claims contained in count
IV (negligence, defamation, malicious abuse of process,
professional negligence, and medical malpractice under the
New Mexico Tort Claims Act) and count V (state common
law claims for intentional infliction of emotional distress,
invasion of privacy, defamation, professional negligence,
negligence, medical malpractice, and malicious abuse of
process). In dismissing these claims, the district court held
that the Mercer–Smiths' state law claims were time-barred
under the two and three year 7 statutes of limitations “for the
same reasons set forth” in the court's *713 dismissal of the
§ 1983 claim. ROA Vol. 1, at 238.
7
The statute of limitations for the Mercer–Smiths' claims
in count IV (New Mexico Tort Claims Act) is two years,
while the applicable statute of limitations for their claims
in count V (New Mexico common law) is three years.
See ROA Vol. 1, at 238.
We affirm the district court's dismissal of these claims
because the latest factual allegation in the Mercer–Smiths'
complaint supporting any claim for relief is the allegation
that, in 2003, the individual defendants “placed the children
with the Farley and Schmierer families in direct violation of
the [state court's] order.” Id. at 8. Because the Mercer–Smiths
knew of these actions prior to filing their contempt motion in
2004, the statute of limitations on each state law claim had
clearly run by 2009, when the Mercer–Smiths filed suit. We
therefore affirm the district court's dismissal of their state law
claims against the individual defendants.
3. Leave to Amend
**8 In their response to the individual defendants' motion
to dismiss, the Mercer–Smiths stated: “If, for any reason,
the court deems the present complaint inadequate, Plaintiffs
request thirty (30) days to re-plead.” ROA Vol. 1, at 40.
The district court did not address this request in its order
granting the individual defendants' motion to dismiss: it
simply dismissed the relevant claims without prejudice. The
Mercer–Smiths now argue the district erred in not permitting
them to amend their complaint. We review the refusal of leave
to amend for abuse of discretion. Gohier v. Enright, 186 F.3d
1216, 1218 (10th Cir.1999).
[4] We conclude that the district court did not abuse its
discretion because the Mercer–Smiths did not comply with
the District of New Mexico's Local Rules as they relate
to amendments of pleadings. As we have previously noted,
New Mexico's Local Rules require parties seeking leave to
amend to (1) file a motion stating with particularity the
grounds for amendment (Rule 7.1); (2) file a separate brief in
support of the motion to amend (Rule 7.5); and (3) attach a
proposed amended complaint to the motion to amend (Rule
15.1). DeHaan v. United States, 3 Fed.Appx. 729, 731 (10th
Cir.2001) (unpublished). The Mercer–Smiths did not comply
with any of these rules; instead, they simply added at the end
of their opposition a blanket request for leave to amend if the
district court found the complaint to be inadequate. Because
the Mercer–Smiths did not properly seek leave to amend, the
district court did not abuse its discretion by not granting them
leave to amend the complaint. See Garman v. Campbell Cnty.
Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir.2010).
[5] The district court also did not err because amendment
in this case would be futile. “Although [the Federal Rules]
provide[ ] that leave to amend shall be given freely, the trial
court may deny leave to amend where amendment would
be futile.” Grossman v. Novell, Inc., 120 F.3d 1112, 1126
(10th Cir.1997). It would be futile to permit the Mercer–
Smiths to amend their complaint because amendment will
not change the fact that the statute of limitations bars their
§ 1983 claim and state law claims against the individual
defendants. No matter what allegations the Mercer–Smiths
add to their amended complaint, the fact remains that they
knew of the defendants' alleged unlawful actions when they
filed their motion for contempt in 2004. Because amendment
cannot cure this statute-of-limitations defect, the district court
was not required to permit the Mercer–Smiths to amend their
complaint.
B. Dr. Beth Reich's Motion for Summary Judgment
The Mercer–Smiths also claim the district court erred in
granting Dr. Reich's motion for summary judgment on their
§ 1983 claim and in dismissing sua sponte *714 their state
law claims contained in counts IV and V.
1. § 1983 claim
The Mercer–Smiths argue the district court should not have
granted summary judgment on their § 1983 claim because
the evidence indicates that Dr. Reich “set out to deprive
them of their constitutional interest in the integrity of
their family unit.” ROA Vol. 1, at 225. Specifically, the
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Mercer-Smith v. New Mexico Children, Youth and Families Dept., 416 Fed.Appx. 704...
Mercer–Smiths claim Dr. Reich violated their constitutional
rights by relying on a “widely discredited” theory regarding
recovered memories and by “persist [ing]” with her claims
that Julia and Rachel had been sexually abused despite
“overwhelming contrary evidence and opinions from her
professional colleagues.” Id. at 5, 9.
**9 [6] We affirm the district court's ruling that the
statute of limitations bars the Mercer–Smiths' § 1983
claim against Dr. Reich. 8 As the Mercer–Smiths state in
their complaint, Dr. Reich's allegedly unlawful actions—
her reckless reliance on a “widely discredited” scientific
theory and her persistent allegations against James Mercer–
Smith despite “overwhelming evidence” of his innocence—
all took place no later than 2002, a full seven years before the
Mercer–Smiths filed suit. Moreover, the record indicates that
the Mercer–Smiths knew of Dr. Reich's allegedly unlawful
actions at that time. By 2002, they knew Dr. Reich had
reported James' alleged abuse to CYFD, they were aware
of the medical foundation upon which Dr. Reich based her
expert opinion, and they were aware of the reports of other
psychologists who disagreed with Dr. Reich's conclusions.
Id. at 46–47, 241. Accordingly, the district court correctly
granted Dr. Reich's motion for summary judgment based on
her statute of limitations defense.
8
We note that the district court also granted Dr. Reich's
motion for summary judgment (1) because the Mercer–
Smiths failed to raise genuine issues of material fact
necessary to defeat summary judgment; (2) because Dr.
Reich is immune from suit; and (3) because Dr. Reich
cannot be liable as a non-state actor under § 1983. Since
we affirm the district court's ruling with respect to the
statute of limitations, we do not address the other reasons
the district court granted summary judgment on the §
1983 claim.
The Mercer–Smiths argue in their opening brief that, at the
very least, a factual question exists regarding whether Dr.
Reich engaged in unlawful activity within the limitations
period. In support of this assertion, they note that on
November 6, 2006, CYFD's attorney sent Dr. Reich a
subpoena requiring her to testify at a state court hearing
regarding custody of Julia and Rachel. Id. at 160. The next
day, however, CYFD's attorney faxed Dr. Reich a letter
indicating that the subpoena had been sent to her in error and
that she would not be needed at the upcoming hearing. Id. at
159.
Despite the Mercer–Smiths' assertions to the contrary, the
November 2006 notice of subpoena fails to create a factual
dispute regarding the running of the statute of limitations.
The fact that CYFD sent Dr. Reich a subpoena (which it
later retracted) in 2006 does not reasonably indicate that Dr.
Reich was engaged in any sort of improper activity at that
time. It is not surprising that Dr. Reich could have been called
to testify in 2006—she first contacted CYFD regarding her
suspicions that the girls had been sexually abused and she had
been deposed in 2002 regarding her professional opinion on
this matter. More important, however, is the fact that even if
CYFD's 2006 subpoena created some sort of factual dispute
regarding the propriety of Dr. Reich's conduct, the statute of
limitations still began running no later than 2002 when the
Mercer–Smiths learned fully of Dr. Reich's involvement in
*715 the state of New Mexico's attempt to obtain custody
of their children. Accordingly, we conclude that the district
court's decision to grant summary judgment on statute of
limitations grounds was correct.
2. State Claims
The Mercer–Smiths also appeal the district court's dismissal
of their state law claims against Dr. Reich. After granting Dr.
Reich's motion for summary judgment on the § 1983 claim,
the district court sua sponte dismissed the remaining state
law claims. The district court dismissed the claims in count
IV, which arise out of the New Mexico Tort Claims Act,
“given [its] findings” regarding the Mercer–Smiths' § 1983
claim. ROA Vol. 1, at 228. And after dismissing those claims,
the district court declined to accept jurisdiction of the New
Mexico common law claims in count V and dismissed them
for lack of federal jurisdiction.
**10 We affirm the district court's dismissal of the state law
claims contained in counts IV and V. As to the claims in count
IV, the district court properly dismissed these claims because,
like the Mercer–Smiths' § 1983 claim, they arise from Dr.
Reich's allegedly improper report of sexual abuse to CYFD
and improper medical conclusions, both of which the Mercer–
Smiths were aware no later than 2002. Thus, the Mercer–
Smiths' knowledge of Dr. Reich's actions bar not only her §
1983 claim, but also her state law claims contained in count
IV.
[7] We also affirm the district court's refusal to accept
jurisdiction of the state law claims in count V. Because
the district court had previously dismissed the Mercer–
Smiths' § 1983 and § 1985 claims against Dr. Reich,
federal question jurisdiction in this case was lacking. Further,
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because all involved parties in this case are citizens of New
Mexico, diversity jurisdiction in this case does not exist.
Accordingly, the district court was within its discretion to
III
decline supplemental jurisdiction 9 on the remaining state
law claims and dismiss them for lack of subject matter
jurisdiction.
The judgment of the district court is AFFIRMED.
9
416 Fed.Appx. 704, 2011 WL 971132
We note that the district court could have also dismissed
the state law claims in Count IV for lack of federal
jurisdiction.
End of Document
All Citations
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
10
Canfield v. Douglas County, 619 Fed.Appx. 774 (2015)
[4] continuing-violation doctrine did not apply; and
619 Fed.Appx. 774
United States Court of Appeals,
Tenth Circuit.
Dawn CANFIELD, Plaintiff–Appellant,
v.
DOUGLAS COUNTY, a public entity; Douglas
County Department Of Human Services; Valerie
Elson, individual and official capacity; Lesa
Adame, individual and official capacity; Cheryl
Caplecha, individual and official capacity; Tracy
Mudget, individual and official capacity; Kristine
Johnson, individual and official capacity; Nicole
Becht, individual and official capacity; Patrick
Sweeney, individual and official capacity; Sherry
Hansen, individual and official capacity; Does 1
[5] Colorado's two-year statute of limitations period for
personal injury actions was not tolled because mother was
allegedly mentally incompetent.
Affirmed.
West Headnotes (5)
[1]
Mother knew or should have known that her
right to familial association had been violated
and her substantive-due-process § 1983 claims
accrued, and Colorado's two-year statute of
limitations began to run, when her children were
first ordered removed from her custody, even
though juvenile court had not yet entered its final
order determining her parental rights. U.S.C.A.
Const.Amend. 14; 42 U.S.C.A. § 1983; West's
C.R.S.A. § 13–80–102(1)(i).
Through 10, inclusive, Defendants–Appellees.
No. 15–1014.
|
Sept. 29, 2015.
Synopsis
Background: Mother brought § 1983 action against county,
county department of human services (DHS), several county
social workers, and other employees of county and DHS,
alleging that she was deprived of her constitutional rights
as a parent when defendants presented false testimony and
suppressed evidence during state juvenile-court proceedings,
and which resulted in loss of custody to her children.
Defendants moved to dismiss. The District Court for the
District of Colorado, 2014 WL 7186749, granted motion.
Mother appealed.
Cases that cite this headnote
[2]
Federal Civil Procedure
New cause of action in general
Mother was not entitled to leave to amend
her § 1983 complaint against county, county
department of human services (DHS), several
county social workers, and other employees of
county and DHS to state conspiracy claim on
appeal, where mother made no specific request
in district court to amend her complaint to state
conspiracy claim, even after court had put her
on notice that she had not stated such claim, she
had counsel in district court, and she had already
amended her complaint twice. 42 U.S.C.A. §
1983.
Holdings: The Court of Appeals, Harris L. Hartz, Circuit
Judge, held that:
[1] mother's claim accrued, and Colorado's two-year statute
of limitations began to run, when children were first ordered
removed from her custody;
[2] mother was not entitled to leave to amend her complaint
to state conspiracy claim on appeal;
[3] Colorado's two-year statute of limitations period for
personal injury actions was not tolled by defendants' alleged
wrongful conduct;
Limitation of Actions
Civil rights
Cases that cite this headnote
[3]
Limitation of Actions
Pendency of action on different cause or in
different forum
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Canfield v. Douglas County, 619 Fed.Appx. 774 (2015)
Colorado's two-year statute of limitations period
for personal injury actions was not tolled until
state court entered its final order regarding
custody of mother's children by alleged wrongful
conduct of county, county department of human
services (DHS), several county social workers,
and other employees of county and DHS
for allegedly discouraging and circumventing
mother's efforts to pursue civil action, where
it was unreasonable for mother to delay filing
§ 1983 action for fear that litigation would
harm her in state proceedings given that mother
alleged that she knew of defendants' false
statements throughout state litigation, that she
was continually at odds with defendants, and
that defendants pursued action against her
almost relentlessly. 42 U.S.C.A. § 1983; West's
C.R.S.A. § 13–80–102(1)(i).
Cases that cite this headnote
[4]
Cases that cite this headnote
Attorneys and Law Firms
*775 Deborah Taussig, Taussig and Taussig, Boulder, CO,
for Plaintiff–Appellant.
Sean Kelly Dunnaway, Castle Rock, CO, Defendants–
Appellees.
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
Limitation of Actions
Liabilities Created by Statute
Continuing-violation doctrine did not apply to
mother's § 1983 action against county, county
department of human services (DHS), several
county social workers, and other employees of
county and DHS, alleging that their wrongful
conduct resulted in mother's loss of custody of
her children; last affirmative act allegedly taken
by defendants was when social workers testified
at hearing on defendants' motion for allocation
of parental responsibility, which was two years
prior to mother's filing of lawsuit. 42 U.S.C.A. §
1983.
Cases that cite this headnote
[5]
court proceeding because she was mentally
incompetent, GAL had two years under statute
governing commencement of limitations periods
for persons with disability to file action, but
GAL failed to do so. 42 U.S.C.A. § 1983; West's
C.R.S.A. §§ 13–80–102(1)(i), 13–81–103(1)(a).
Limitation of Actions
Insanity or Other Incompetency
Colorado's two-year statute of limitations period
for personal injury actions was not tolled because
mother was allegedly mentally incompetent
in mother's § 1983 action against county,
county department of human services (DHS),
several county social workers, and other
employees of county and DHS; mother was
appointed guardian ad litem (GAL) in state-
ORDER AND JUDGMENT *
*
After examining the briefs and appellate record, this
panel has determined unanimously that oral argument
would not materially assist in the determination of
this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without
oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed.
R.App. P. 32.1 and 10th Cir. R. 32.1.
HARRIS L. HARTZ, Circuit Judge.
Dawn Canfield sued the defendants under 42 U.S.C. § 1983,
alleging that they had deprived her of her constitutional
rights as a parent by presenting false testimony and by
suppressing evidence during state juvenile-court proceedings,
thereby causing her to lose custody of her children. Her
second amended complaint (the Complaint) also included
several related claims under Colorado law. The district court
dismissed her federal claims with prejudice for failure to state
a claim *776 because they were untimely on their face. 1 It
declined to exercise supplemental jurisdiction over her statelaw claims and dismissed them without prejudice. We affirm.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Canfield v. Douglas County, 619 Fed.Appx. 774 (2015)
1
The parties consented to entry of final judgment by a
United States Magistrate Judge. See 28 U.S.C. § 636(c).
visitation in a professional facility. Ms. Canfield filed this
action on February 21, 2014.
BACKGROUND
The Complaint sought damages from Douglas County, its
Department of Human Services (DHS), and a number of
social workers and others employed by Douglas County or the
DHS. Because we are reviewing a dismissal on the pleadings,
we set forth the facts as alleged in the Complaint.
In 2010 Ms. Canfield applied for a temporary restraining
order against her husband. This matter was set for hearing on
September 10, 2010. Before the hearing the defendant social
workers interviewed her husband, who made false statements
about her, characterizing her as mentally unstable and a threat
to her children. The social workers failed to investigate Mr.
Canfield's statements and improperly took them as true.
At the September 10 hearing Ms. Canfield was confronted
by a DHS social worker who expressed concern about her
mental health and the safety of her children. Either at that
hearing or a later one (the Complaint is unclear) DHS social
workers testified that Ms. Canfield was mentally unstable and
recommended that her children be removed from her home
and placed with her husband. In addition, the defendants
initiated a dependency-and-neglect (D & N) proceeding on
October 4, 2010. The social workers presented testimony and
filed an assessment containing a false statement regarding
Ms. Canfield's prior conduct. The court ordered her to
relinquish custody to her husband, and allowed her only
supervised visitation.
DISCUSSION
“We review de novo the dismissal of an action under Rule
12(b)(6) based on the statute of limitations.” Braxton v.
Zavaras, 614 F.3d 1156, 1159 (10th Cir.2010). “We accept
as true all well-pleaded factual allegations in the complaint
and view them in the light most favorable to the [plaintiff].”
SEC v. Shields, 744 F.3d 633, 640 (10th Cir.2014) (internal
quotation marks omitted). “While the statute of limitations is
an affirmative defense, when the dates given in the complaint
make clear that the right sued upon has been extinguished, the
plaintiff has the burden of establishing a *777 factual basis
for tolling the statute.” Aldrich v. McCulloch Props., Inc., 627
F.2d 1036, 1041 n. 4 (10th Cir.1980).
In § 1983 actions we apply the forum state's statute of
limitations for personal-injury claims, Wallace v. Kato, 549
U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), and
generally apply the forum state's tolling rules, id. at 394,
127 S.Ct. 1091. Colorado, the forum state here, provides
a two-year statute of limitations for personal-injury claims.
Colo.Rev.Stat. § 13–80–102. 2 For the accrual date, however,
we look to federal law. See Wallace, 549 U.S. at 388, 127
S.Ct. 1091. Under federal law, “[a] civil rights action accrues
when facts that would support a cause of action are or should
be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th
Cir.1995) (internal quotation marks omitted).
2
Over the course of a year and a half, DHS and its
agents submitted false information and testimony to the
court, presented false reports and findings concerning Ms.
Canfield's parenting abilities, coerced her into agreeing
to a stipulated adjudication that adversely affected her
ability to regain custody of her children, required her to
undergo examinations with biased examiners, interfered
with her therapy, and ignored or covered up Mr.
Canfield's inadequacies as a parent. Throughout the various
proceedings, DHS agents promised Ms. Canfield that if she
cooperated with DHS, her custodial rights would be restored.
As a result of the defendants' actions, the state court entered
a final Order of Allocation of Parental Responsibilities
on February 24, 2012, which awarded Mr. Canfield “sole
decision-making and allocation of parental responsibilities,”
Complaint, ¶ 51, and limited Ms. Canfield to supervised
The district court applied Colo.Rev.Stat. § 13–80–102(1)
(g), which provides a two-year statute of limitations
for “[a]ll actions upon liability created by a federal
statute where no period of limitations is provided in said
federal statute.” But we rely on the residual statute of
limitations in § 13–80–102(1)(i), which pertains to “[a]ll
other actions of every kind for which no other period
of limitations is provided.” See Blake v. Dickason, 997
F.2d 749, 750–51 (10th Cir.1993) (adopting two-year
residual limitations period in § 13–80–102(1)(i) for §
1983 actions); Arnold v. Duchesne Cty., 26 F.3d 982,
985 n. 5 (10th Cir.1994) (explaining that this court has
applied Colorado's residual statute of limitations, rather
than its statute applicable to federal actions for which
there is no limitations period, to § 1983 claims).
[1] We agree with the district court that Ms. Canfield's
substantive-due-process claims accrued in 2010, when her
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Canfield v. Douglas County, 619 Fed.Appx. 774 (2015)
children were ordered removed from her custody, as she
knew or should have known at that point that her right to
familial association had been violated. Because Ms. Canfield
did not file this action until February 21, 2014, the statute of
limitations barred her federal civil-rights claims. She makes
several arguments to salvage her claims, but they are not
persuasive.
First, Ms. Canfield argues that her claims did not accrue until
February 24, 2012, when the state juvenile court entered its
final order determining her parental rights. 3 We disagree.
Her relevant injury became evident when her children were
first ordered removed from her custody—the first loss of
parental rights that she attributes, at least in part, to the
defendants. Cf. Thomas v. Kaven, 765 F.3d 1183, 1187–
88, 1190, 1196 (10th Cir.2014) (parents stated claim for
violation of the right to familial association after child's
doctors and therapists placed medical hold on child and
sought state-court order for involuntary residential treatment,
even though defendants abandoned involuntary-treatment
proceeding before court held hearing or entered any final
order). The cause of action accrued at that time even though
“the full extent of [her] injury [was] not then known or
predictable.” Varnell v. Dora Consolidated Sch. Dist., 756
F.3d 1208, 1216 (10th Cir.2014) (internal quotation marks
omitted). Nor was commencement of the limitations period
delayed, as Ms. Canfield asserts, until the state court reached
a final decision. Cf. Brodeur v. Am. Home Assurance Co.,
169 P.3d 139, 146 (Colo.2007) (accrual date for bad-faith
tort suit based on harmful tardiness in handling worker's
compensation claim was not postponed until final resolution
of worker's compensation claim). She did not need to await
the final decision to know that her parental rights had been
injured.
3
The defendants contend that she forfeited this argument
by failing to raise it in district court. We disagree. She
presented the argument sufficiently to preserve it for our
review. See Aplt.App. at 136–37 (response to motion to
dismiss).
*778 [2] Second, Ms. Canfield argues that her complaint
includes a conspiracy claim and that for such a claim,
“the statute of limitations accrues when the conspiracy
is complete, not when it begins.” Aplt. Opening Br. at
19. She contends that the conspiracy did not conclude
until the juvenile court entered its final order allocating
parental rights. But the district court properly determined
that the Complaint did not assert a claim for conspiracy.
Although Ms. Canfield cites three instances in her 38–page
Complaint where she alleged that the defendant caseworkers
had “conspired” against her, these passing references—which
fail to particularize why it is plausible to believe that all the
defendants entered into a common agreement, as opposed
to engaging in parallel conduct—do not suffice to state a
conspiracy claim. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556–57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (to
plead a conspiracy claim, allegations of parallel conduct must
be “placed in a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could just as
well be independent action”). A conclusory allegation of
conspiracy will not suffice. See id. Further, Ms. Canfield's
response in district court to the defendants' motion to dismiss
failed to argue that her purported conspiracy claim did not
accrue until entry of the 2012 order. It says merely, “The
statute of limitations runs in a conspiracy claim under §
1983 when the conspiracy claim accrued and not when the
defendants commenced the conspiracy.” Aplt.App. at 137. It
was not the job of the district court to rescue Ms. Canfield's
claim by making her legal arguments and factual allegations
for her. In her reply brief, Ms. Canfield requests leave to
amend her complaint to state a conspiracy claim if it fails to
do so. But we deny this request, made for the first time in the
reply brief, because (1) she made no specific request in district
court to amend her complaint to state a conspiracy claim, even
after the court had put her on notice that she had not stated
such a claim; (2) she had counsel in district court; and (3) she
had already amended her complaint twice.
[3] Third, Ms. Canfield argues that her claims should be
equitably tolled until the state court entered its final order
because the defendants' “wrongful conduct prevented [her]
from pursuing ... her claim.” Aplt. Opening Br. at 22. See
Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094,
1096 (Colo.1996) (equitable tolling is appropriate “where
the defendant's wrongful conduct prevented the plaintiff
from asserting his or her claims in a timely manner.”). The
defendants' alleged wrongful conduct, which “discouraged
and circumvented Ms. Canfield's efforts [to pursue] a civil
action,” consisted of “false promises to her that the fastest
way to get her children back was to comply with their
demands.” Aplt. Opening Br. at 24. But the Complaint alleges
that Ms. Canfield knew of the defendants' false statements
throughout the state litigation, she was continually at odds
with the defendants, and the defendants pursued action
against her almost relentlessly. In this context it would have
been unreasonable for her to delay filing this suit for fear that
the litigation would harm her in the state proceedings.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
4
Canfield v. Douglas County, 619 Fed.Appx. 774 (2015)
[4] Fourth, Ms. Canfield argues that under the “continuing
violation doctrine,” her claims continued to accrue during
the entire time period covered by her complaint. As the
district court noted, however, this court has never held that
the continuing-violation doctrine applies to § 1983 cases.
And we have assumed that even if it does, “the doctrine is
triggered by continual unlawful acts, not continual ill effects
from the original violation.” *779 Mata v. Anderson, 635
F.3d 1250, 1253 (10th Cir.2011) (internal quotation marks
omitted). Ms. Canfield does not allege any discrete unlawful
acts that occurred during the two years before she filed
this action. The last affirmative act taken by the defendants
alleged in the complaint was in January 2012, when social
workers testified at a hearing on the defendants' motion
for allocation of parental responsibility. This act preceded
the two-year period before Ms. Canfield filed suit. (The
Complaint does allege that “Douglas County, through DHS,
continues to this day to deny Plaintiff her parental rights by
the fraudulent omissions of evidence and outright suppression
of material exculpatory evidence, by and through its public
employees.” Aplt.App. at 179, ¶ 55. But this sentence fails to
adequately allege additional wrongful acts. See Pike v. City of
Mission, 731 F.2d 655, 660 (10th Cir.1984) (plaintiff could
not rely on continuing-violation theory where he alleged
that the defendants “continued to deny him reinstatement
and a due process hearing” and to retain false information
about him in their files during the limitations period, because
“[t]hese acts are the natural result of the original employment
decision,” not new grounds for relief), overruled on other
grounds, Baker v. Board of Regents, 991 F.2d 628, 633 (10th
Cir.1993).) 4
4
Although Ms. Canfield's Complaint includes a prayer for
injunctive relief, and a claim for declaratory relief against
Douglas County, her claim for such relief does not allege
additional specific acts that occurred or were threatened
End of Document
during the limitations period. Nor does Ms. Canfield rely
on her claim for declaratory or injunctive relief to support
her continuing-violation argument.
[5] Finally, Ms. Canfield argues that the limitations
period should have been tolled because she was “mentally
incompetent.” Aplt. Opening Br. at 28–29. She admits that
she was not really mentally incompetent, but she argues that
DHS cannot have it both ways—arguing that she was not
competent to be a parent and needed a guardian ad litem
(GAL), yet was competent enough to understand that her
constitutional rights had been violated as of September 10,
2010. The statute on which she relies, which deals with
commencement of limitations periods for persons under a
disability, provides that if such a person is represented by
a legal representative, the representative has until two years
after his or her appointment to take action on behalf of
the person under a disability, notwithstanding any earlier
expiration of the limitations period. Colo.Rev.Stat. § 13–81–
103(1)(a). Ms. Canfield states that she was appointed a GAL
in the state-court proceeding on October 28, 2011. Assuming
the statute applies, her GAL thus had two years from that date,
or until October 28, 2013, to file this action. The GAL failed
to do so.
CONCLUSION
As the district court correctly determined, the allegations of
Ms. Canfield's Complaint show that it was untimely filed.
None of her arguments to the contrary has merit. We therefore
affirm the judgment of the district court.
All Citations
619 Fed.Appx. 774
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5
Cruz v. Raemisch, Not Reported in F.Supp.3d (2015)
2015 WL 2148708
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Paul Matthew Cruz, Plaintiff,
v.
Rick Raemisch, in his official capacity
as Executive Director of the Colorado
Department of Corrections, Defendant.
Civil Action No. 14–cv–03021–
WYD–KMT | Signed May 6, 2015
Attorneys and Law Firms
Robert Paul Borquez, Robert P. Borquez, Attorney at Law,
Denver, CO, for Plaintiff.
Kristin A. Ruiz, Colorado Attorney General's Office, Denver,
CO, for Defendant.
ORDER ON MOTION TO DISMISS
Wiley Y. Daniel, Senior United States District Judge
I. INTRODUCTION
*1 THIS MATTER is before the Court on Defendant's
Motion to Dismiss filed on January 9, 2015. The motion seeks
to dismiss Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)
(1) and 12(b)(6). A response in opposition to the motion was
filed on January 29, 2015, and a reply was filed on February
23, 2015. Thus, the motion is fully briefed. Also pending is
Plaintiff's Opposed Motion for Leave to Join Parties and File
Amended Complaint, which is fully briefed.
By way of background, this is a prisoner civil rights
case wherein Plaintiff asserts a single claim for relief
under the Fourteenth Amendment based on his assertions
that the criteria for sex offender treatment as outlined in
Administrative Regulation 700–19 violates his “substantive
due process liberty interest in statutorily mandated sex
offender treatment, because it makes such treatment
conditional upon the inmate fitting into a particular DOCimposed modality.” (Compl., ¶ 1.) Thus, Plaintiff alleges that
in September of 2002, he was sentenced to an indeterminate
sentence of ten (10) years to life under the Colorado
Life Time Supervision Act, also known as SOLSA. (Id.,
¶ 15.) Upon his incarceration in the Colorado Department
of Corrections [“DOC”], Plaintiff sought and received
sex offender treatment through the DOC's Sex Offender
Treatment and Monitoring Program (“SOTMP”). (Id. at ¶
17.) However, Plaintiff was subsequently terminated from the
program after only one month due to his failure to attend
group therapy sessions. (Id. at ¶ 18.)
The Complaint alleges that between December 11, 2002,
and the filing of the Complaint, Plaintiff was not offered
admission into SOTMP Phase I. (Compl., ¶ 19.) It further
alleges that on April 13, 2010, Plaintiff “reached his initial
Parole Eligibility Date but was not eligible for parole because
he had not yet started SOTMP Phase 1 nor had he otherwise
progressed sufficiently in treatment to make him eligible
for parole.” (Id., ¶ 20.) In April 2012, Plaintiff completed
the Phase 1 screening form and it was referred to SOTMP
for screening and placement on the waiting list. (Id., ¶ 21.)
On July 25, 2012, Plaintiff “was placed on the waiting list,
“awaiting re-entry into Phase 1.” (Id., ¶ 22.) When Plaintiff
and his attorney asked about when Plaintiff would re-enter
Phase I, they were told that he had to “wait to be called to
join an active treatment”, that he would be notified “when
his name came up for placement” at which time he would be
“called to the facility” that has an open space, and that the
DOC could not give a specific time when he would be placed
back in a group. (Id., ¶¶ 23–26.) Plaintiff has still not been
reinstated into the SOTMP. (Id., ¶¶ 29–30.)
Plaintiff asserts that he “is entitled to treatment under §§ 18–
1.3–1004(3) and 1611.7–105(1), C.R.S., without having to
meet the above DOC-imposed modality.” (Compl., ¶ 28.) He
further asserts that “the DOC criteria on its face limits sex
offender treatment just to those offenders who comply with
the DOC criteria, and in the Plaintiff's case, the application of
that unlawful criteria has denied and continues to deny Mr.
Cruz the treatment that he is entitled to under Colorado law, in
violation of his liberty interest in said treatment as protected
by the Fourteenth Amendment to the U.S. Constitution.” (Id.,
¶ 33.) He asks the Court to declare A.R. 700–19, § IV(E)
“Treatment Participation Requirements and Prioritization” of
SOTMP null and void, to reinstate Plaintiff into sex offender
treatment, and for an award of attorney's fees and costs.
*2 On March 24, 2015, Plaintiff filed a Motion for Leave
to Join Parties and File Amended Complaint. It states that
the Executive Director of the DOC who was the only
Defendant initially sued does not manage and control the
SOTMP without delegating responsibilities to subordinates.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Cruz v. Raemisch, Not Reported in F.Supp.3d (2015)
Thus, Plaintiff seeks to join Leonard Woodson, the SOTMP
Unit Manager of the DOC, and Ivette Ruiz, the SOTMP
Coordinator for the Arkansas Valley Correctional Facility,
and to file the Amended Complaint attached as Exhibit A to
the motion.
II. ANALYSIS
A. Motion to Dismiss
1. Standard of Review
Defendant's motion is filed pursuant to Fed. R. Civ. P. 12(b)
(1) and (b)( (6). Under Rule 12(b)(1), a complaint may be
dismissed for lack of subject matter jurisdiction. A facial
attack on the complaint's allegations as to subject matter
jurisdiction, as in this case, “questions the sufficiency of the
complaint.” Holt v. United States, 46 F.3d 1000, 1002 (10th
Cir. 1995). In reviewing a facial attack, the Court “must
accept the allegations in the complaint as true.” Id.
As to a motion to dismiss filed under that Rule 12(b)(6),
the court must “accept all well-pleaded facts as true and
view them in the light most favorable to the plaintiff.”
Jordan–Arapahoe, LLP v. Bd. of County Comm'rs of Cnty.
of Arapahoe, 633 F.3d 1022, 1025 (10th Cir. 2011). Plaintiff
“must allege that ‘enough factual matter, taken as true,
[makes] his claim for relief ... plausible on its face.’ ” Id.
(quotation and internal quotation marks omitted). “A claim
has facial plausibility when the [pleaded] factual content [ ]
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.' ” Id. (quotation
omitted).
2. The Merits of the Motion to Dismiss
Defendant first argues that Plaintiff's Complaint is barred by
the two year statute of limitations applicable to civil rights
claims brought pursuant to 42 U.S.C. § 1983. In Colorado, a
two year statute of limitations applies to Section 1983 claims.
Colo. Rev. Stat. § 13–80–102; Depineda v. Hemphill, 25 F.3d
1056 (10th Cir. 1994). A § 1983 claim accrues when the
plaintiff knows or has reason to know of the injury that is
the basis of the action. Workman v. Jordan, 32 F.3d 475, 482
(10th Cir. 1994); see also Fratus v. Deland, 49 F.3d 673, 675
(10th Cir. 1995) (“a civil rights action accrues when ‘facts that
would support a cause of action are or should be apparent’ ”)
(quotation omitted).
Defendant asserts that the gravamen of Plaintiff's Complaint
centers on the application of the treatment criteria outlined in
Administrative Regulation 700–19 in determining Plaintiff's
eligibility for treatment, as well as his priority order on the
Phase I STOMP wait list. He asserts that Plaintiff was subject
to the alleged unlawful criteria in July of 2012. Therefore,
Defendant argues that Plaintiff knew or had reason to know
of the injury that forms the basis of this lawsuit by that
time frame. Plaintiff did not file this action until November
2014, several months after the statute of limitations had
expired. Thus, Defendant contends that the Complaint must
be dismissed as time-barred.
In response, Plaintiff asserts that the argument that the
cause of action accrued in July 2012 is faulty because
Defendant has been engaging in a continuing violation of
Plaintiff's constitutional rights. He argues that application
of the continuing violations doctrine is a fact-intensive
exception to the statute of limitations, and cannot be cannot
be resolved by a motion to dismiss under Rule 12.
*3 I find that the motion to dismiss must be granted because
the case is time-barred. Plaintiff does not dispute Defendant's
contention that his claim accrued at the latest in July 2012
when he was subjected to the alleged unlawful criteria.
He further does not dispute that his Complaint was filed
more than two years after that. While Plaintiff relies on the
continuing violations doctrine, the Tenth Circuit has stated
that this doctrine does not apply to § 1983 claims. Mercer–
Smith v. New Mexico Children, Youth and Families Dept., 416
Fed.Appx. 704, 712 (10th Cir. 2011) (citing Hunt v. Bennett,
17 F.3d 1263, 1265 (10th Cir. 1994) (holding that the doctrine
of continuing violations does not “extend[ ] ... to a § 1983
claim”); Thomas v. Denny's Inc., 111 F.3d 1506, 1514 (10th
Cir. 1997) (the doctrine of continuing violations applies to
Title VII claims because “of the need to file administrative
charges,” but does not apply to claims that do “not require
[the] filing of such charges before a judicial action may be
brought.”)). 1
1
While the Hunt court indicated that the continuing
violations doctrine might apply to a conspiracy claim
under § 1983, 17 F.3d at 1266, no such claim is
implicated here.
Moreover, I agree with Defendant that even if a continuing
violation exception could be applied to claims under § 1983,
it would not be applicable here. That exception is triggered
by a continuous series of unlawful acts, not by the continuing
effects of the original violation. Mata v. Anderson, 635 F.3d
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Cruz v. Raemisch, Not Reported in F.Supp.3d (2015)
1250, 1253 (10th Cir. 2011). Here, Plaintiff challenges the
application of AR 700–19–IV–E for purposes of determining
his eligibility for placement on the wait list and his priority
order on the same. The Complaint makes clear that the alleged
unlawful criterion was applied in July of 2012, when Plaintiff
was screened for treatment and placed on the treatment wait
list. While Plaintiff may continue to feel the effects of this
initial act, no new act occurred thereafter and the continuing
violation doctrine is not triggered by the continuing effects of
the original violation. Since I have found that Plaintiff's claim
is time-barred, I need not address the merits of the substantive
due process claim
B. Motion to Join Parties and Amend Complaint
I also deny Plaintiff's Opposed Motion for Leave to Join
Parties and File Amended Complaint on grounds of futility.
See Frank v. U.S. West, 3 F.3d 1357, 1365 (10th Cir. 1993). A
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal for any reason. Watson ex rel.
Watson v. Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001);
see also Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir.
1999) (“The futility question is functionally equivalent to the
End of Document
question whether a complaint may be dismissed for failure to
state a claim....”). Here, the Amended Complaint as proposed
would be subject to dismissal for the same reasons as the
original Complaint. The Amended Complaint does not impact
the accrual of the cause of action in July 2012, and the two
year statute of limitations would bar the claims against the
new Defendants.
III. CONCLUSION
Based upon the foregoing, it is
ORDERED that Defendant's Motion to Dismiss (ECF No. 8)
is GRANTED. It is
FURTHER ORDERED that Plaintiff's Opposed Motion for
Leave to Join Parties and File Amended Complaint (ECF No.
19) is DENIED as futile.
All Citations
Not Reported in F.Supp.3d, 2015 WL 2148708
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Allen v. Falk, Not Reported in F.Supp.3d (2015)
2015 WL 156777
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Edward Allen aka Edward Clutts, Plaintiff,
v.
Warden Falk of Sterling
Correctional Facility, Defendant.
Civil Action No 14–cv–01176–RBJ–
MJW | Signed January 12, 2015
Attorneys and Law Firms
Edward Allen, Canon City, CO, pro se.
Jacquelynn Nichole Rich Fredericks, Colorado Attorney
General's Office, Denver, CO, for Defendant.
ORDER
R. Brooke Jackson, United States District Judge
*1 This matter is before the Court on the December 18,
2014 Recommendation [ECF No. 45] of Magistrate Judge
Michael J. Watanabe that the Court grant Defendant's Motion
to Dismiss Plaintiff's Amended Complaint or Alternatively,
Motion for Summary Judgment [ECF No. 25]; deny Plaintiff's
Second Motion Persent [sic] FRCP 65 [ECF No. 27]; and
deny Plaintiff's Motion for Joinder of Parties [ECF No. 42]. 1
The Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
1
The Court converts Judge Watanabe's recommendation
on the motion for joinder of parties into an order, as it is
a non-dispositive pretrial motion. See Ocelot Oil Corp.
v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988).
The Court has reviewed the order for clear error and,
finding none, affirms it. See 28 U.S.C. § 636(b)(1)(A).
BACKGROUND
A detailed summary of the procedural and factual background
of this case was provided in the Recommendation. As a
brief overview, Plaintiff Edward Allen (aka Edward Clutts)
is an inmate at the Colorado Territorial Correctional Facility
(“CTCF”) in Canon City, Colorado. Mr. Allen filed this
lawsuit pursuant to 42 U.S.C. § 1983 claiming violations
of a number of his constitutional rights against a number
of defendants. Presently only one defendant and one claim
remain, namely an Eighth Amendment claim against Warden
Falk of Sterling Correctional Facility (“SCF”), a facility
where Mr. Allen was previously (but no longer is) held.
The defendant moved to dismiss this claim, or alternatively
for judgment as a matter of law. Upon a thorough review,
Judge Watanabe recommended that the claim be dismissed
or, alternatively, that judgment be entered in favor of the
defendant as a matter of law. Meanwhile, Mr. Allen moved
for injunctive relief, seeking an order barring his transfer to
another facility for the duration of this case. Judge Watanabe
recommended denying the motion. Judge Watanabe also
denied Mr. Allen's motion for joinder of parties, which
he liberally construed as a motion for leave to amend the
pleadings.
The Recommendation advised the parties that specific written
objections were due within fourteen (14) days after being
served with a copy of the Recommendation. Mr. Allen filed
a timely objection on December 28, 2014. [ECF No. 46].
Following the issuance of a magistrate judge's
recommendation on a dispositive matter, the district court
judge must “determine de novo any part of the magistrate
judge's disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). The district judge is permitted to
“accept, reject, or modify the recommended disposition;
receive further instruction; or return the matter to the
magistrate with instructions.” Id. “In the absence of timely
objection, the district court may review a magistrate ...
[judge's] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985) ( “It does not appear
that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo
or any other standard, when neither party objects to those
findings.”)).
*2 The Court has reviewed the relevant filings surrounding
the Recommendation, in particular the Complaint, the
pending motions, the briefs on the motions, and the
objection. The Court has conducted a de novo review of
the Recommendation in response to the plaintiff's timelyfiled objection. Based on this review, the Court concludes
that Judge Watanabe's analyses and recommendations are
correct. The Court therefore ADOPTS the Recommendation
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of the United States Magistrate Judge as the findings and
conclusions of this Court.
Though it need not, the Court pauses to address some of Mr.
Allen's concerns raised in his objection. First and foremost,
this Court is limited in its powers. The fact that all of Mr.
Allen's previous lawsuits have been dismissed on procedural
grounds is not a choice that the Court makes; the Court is not
free to hear the merits of a case if the procedural requirements
have not been met. However, Judge Watanabe did address
the merits of Mr. Allen's claim, and found that it should be
dismissed even if it did not suffer from procedural defects.
See [ECF No. 45 at 15–18]. Second, Warden Falk cannot be
sued for injunctive relief in this case, as Mr. Allen maintains.
Because Mr. Allen is no longer housed at SCF, Warden Falk
has no control over Mr. Allen's living conditions. Therefore,
no relief can come from an injunction. Third, though he insists
otherwise, Mr. Allen has not exhausted his administrative
remedies. Under prison regulations, Mr. Allen was required
to file a grievance within 30 days of his alleged attack. He
failed to do so, and he did not request to file a grievance
for approximately two years after the incident occurred. The
Prison Litigation Reform Act (“PLRA”) therefore bars this
suit. Fourth, Mr. Allen's “pattern of misconduct” theory is
misplaced. As indicated by the authority Mr. Allen cites, this
theory is used to make out a claim of municipal liability. See
[ECF No. 32 at 1–2, 5]. Mr. Allen, however, has not sued
a municipality. Finally, Judge Babcock—the original Judge
assigned to this case—never found that Mr. Allen's claim had
a likelihood of success on the merits; he merely found that the
claim was “not legally frivolous” and therefore not subject to
sua sponte dismissal. See [ECF No. 16 at 8]. The two are far
from the same.
RECOMMENDATION ON
(1) DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S AMENDED COMPLAINT (DOC.
12) OR ALTERNATIVELY, MOTION FOR
SUMMARY JUDGMENT (Docket No. 25);
(2) PLAINTIFF'S SECOND MOTION
PERSENT [sic] FRCP [sic] 65 (Docket No. 27);
and
(3) PLAINTIFF'S MOTION FOR
JOINDER OF PARTIES (Docket No. 42)
MICHAEL J. WATANABE, United States Magistrate Judge
This case is before the undersigned pursuant to an Order of
Reference to United States Magistrate Judge entered by Judge
R. Brooke Jackson on October 24, 2014 (Docket No. 31).
PLAINTIFF'S ALLEGATIONS
The pro se incarcerated plaintiff raised three claims against
thirteen defendants in his Amended Complaint brought
pursuant to 42 U.S.C. § 1983. (Docket No. 12). However,
following an Order issued by Judge Lewis T. Babcock
(Docket No. 16 at 10), only one defendant and one claim
remain, namely, plaintiff's Eighth Amendment claim against
Defendant Warden Falk of Sterling Correctional Facility
(claim three) (Docket No. 12 at 9; see Docket No. 24
amending caption to reflect Falk's name) in which plaintiff
alleges the following.
ORDER
Accordingly, it is ORDERED that the Recommendation
of the United States Magistrate Judge [ECF No. 45] is
AFFIRMED, and it is ADOPTED. It is further ORDERED
that Defendant's Motion to Dismiss Plaintiff's Amended
Complaint or Alternatively, Motion for Summary Judgment
[ECF No. 25] is GRANTED; Plaintiff's Second Motion
Persent [sic] FRCP 65 [ECF No. 27] is DENIED; and
Plaintiff's Motion for Joinder of Parties [ECF No. 42] is
DENIED.
*3 In July 2004 plaintiff was sentenced to three concurrent
terms of ten years to life, and the sentencing court stated that it
could not order the plaintiff to take sex offender treatment. On
or about August 15, 2004, plaintiff's case manager Mr. Jones
informed plaintiff he was recommending the sex offender
treatment program, and if plaintiff did not cooperate, plaintiff
would be moved to a place where “things can be done.” In
2005 the sex offender treatment program sent plaintiff a form
which required him to confess a crime, which he refused to
sign. He was thus deemed to be in denial and non-compliant
with sex offender treatment.
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Over the past ten years, plaintiff has been placed in several
facilities where security threat group (STG) prisoners have
threatened, beaten, and attempted to extort and kill him. On
July 31, 2009, he arrived at Sterling Correctional Facility
(“SCF”). He had already filed a civil case (Case No. 08–
cv–02506–ZLW–BNB) about the violence he had already
experienced, which was ultimately dismissed as frivolous.
In that case, Magistrate Judge Boland conducted a hearing
during which plaintiff informed the court he was still living
under the threat of violence. After the hearing, plaintiff was
moved to Living Unit 4 (“LU4”) by the Warden/Designee
of SCF. Plaintiff was housed in a cell with an inmate who
informed him that if he stayed in that cell without a fight with
the plaintiff, his boys would beat him down. That inmate was
moved to another cell. Then inmate Zamora was moved in,
and he also had gang affiliations. Plaintiff went to Sergeant
Buckner on several occasions, but Buckner refused to move
plaintiff. Zamora came back into the cell and starting hitting
plaintiff until a voice came over the speaker stating, “Zamora
you and Clutts stop your shit and you pack up your [sic]
moving.” On August 12, 2011, prisoner Edward Douglas
snuck up behind the plaintiff with a lock in a sock and beat
the plaintiff. On April 25, 2012, inmate Windschel attacked
plaintiff in the “gang pod” where plaintiff was being housed.
Since 2008, after the hearing held by Judge Boland, plaintiff
has suffered scars on his face, a broken rib, and a lost
tooth. The Attorney General's Office has refused to do
anything about the threats of violence. The Warden/Designee
has gone out of his way to place plaintiff in with STG
prisoners. Plaintiff has been told he will be protected from
STG prisoners if he takes sex offender treatment. It violates
plaintiff's Eighth Amendment right to not protect him from
other prisoners. It is common knowledge that sex offenders
are attacked, beaten, extorted, and killed by STG prisoners.
Plaintiff seeks injunctive relief in the form of a restraining
order preventing the CDOC from placing him in a facility
with STG prisoners. He also seeks declaratory relief and
punitive and compensatory damages.
PENDING MOTIONS
Now before the court for a report and recommendation
are the following three motions: (1) Defendant's Motion
to Dismiss Plaintiff's Amended Complaint (Doc. 12) or
Alternatively, Motion for Summary Judgment (Docket No.
25); (2) Plaintiff's Second Motion Persent [sic] FRCP [sic]
65 (Docket No. 27); and (3) Plaintiff's Motion for Joinder
of Parties (Docket No. 42). Responses have been filed with
respect to the first two motions (Docket Nos. 32 and 35).
Defendant filed a reply in support of his motion (Docket
No. 37). Plaintiff just filed an untimely reply in support
of his motion for a temporary restraining order (“TRO”)
(Docket No. 44). The court has considered these motions, the
responses thereto, the replies, and applicable case law and
statutes. In addition, the court has taken judicial notice of the
court file and plaintiff's other civil actions in this court. The
court now being fully informed makes the following findings,
conclusions of law, and recommendations.
Defendant's Motion to Dismiss or for Summary Judgment
*4 Defendant moves to dismiss the Amended Complaint
(Docket No. 12) pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)
(6) on the following grounds: (1) plaintiff failed to exhaust
his administrative remedies and his claim should thus be
dismissed pursuant to the Prison Litigation Reform Act
(“PLRA”), (2) his claim is largely time-barred, (3) Falk
is entitled to Eleventh Amendment immunity, (4) plaintiff
fails to allege personal participation on behalf of Falk, (5)
plaintiff fails to state an Eighth Amendment claim; (6) Falk is
entitled to qualified immunity, and (7) plaintiff fails to state a
claim for damages. The only argument alternatively brought
pursuant to Fed.R.Civ.P. 56 is number 1, the non-exhaustion
argument.
Rule 12(b)(1):
empowers a court to dismiss a Complaint for “lack of
jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)
(1). As courts of limited jurisdiction, federal courts may
only adjudicate cases that the Constitution and Congress
have granted them authority to hear. See U.S. CONST.
art. Ill, § 2; Morris v. City of Hobart, 39 F.3d 1105, 1110
(10th Cir.1994). Statutes conferring jurisdiction on federal
courts are to be strictly construed. See F & S Constr. Co.
v. Jensen, 337 F.2d 160, 161 (10th Cir.1964). A Rule
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir.1971). The burden
of establishing subject matter jurisdiction is on the party
asserting jurisdiction. See Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir.1974).
Motions to dismiss pursuant to Rule 12(b)(1) may take
two forms. First, if a party attacks the facial sufficiency
of the complaint, the court must accept the allegations of
the complaint as true. See Holt v. United States, 46 F.3d
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1000, 1002–03 (10th Cir.1995). Second, if a party attacks
the factual assertions regarding subject matter jurisdiction
through affidavits and other documents, the court may
make its own findings of fact. See id. at 1003. A court's
consideration of evidence outside the pleadings will not
convert the motion to dismiss to a motion for summary
judgment under Rule 56. See id.
Cherry Creek Card & Party Shop, Inc. v. Hallmark Marketing
Corp., 176 F.Supp.2d 1091, 1094–95 (D.Colo.2001).
Under Rule 8(a)(2), a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A motion to dismiss pursuant
to Rule 12(b)(6) alleges that the complaint fails “to state a
claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)
(6). “A complaint must be dismissed pursuant to Fed.R.Civ.P.
12(b)(6) if it does not plead ‘enough facts to state a claim to
relief that is plausible on its face.’ ” Cutter v. RailAmerica,
Inc., 2008 WL 163016, at *2 (D.Colo. Jan. 15, 2008) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 1974 (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 ....” Bell Atlantic Corp., 550
U.S. at 555 (citations 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) (quoting Bell Atlantic Corp., 127 S.Ct. at
1974).
*5 The Tenth Circuit Court of Appeals has held “that
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.’ ” Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir.2012). The Circuit court has further
“noted that ‘[t]he nature and specificity of the allegations
required to state a plausible claim will vary based on context.’
” Id. The court thus “concluded the Twombly/lqbal standard
is ‘a wide middle ground between heightened fact pleading,
which is expressly rejected, and allowing complaints that are
no more than labels and conclusions or a formulaic recitation
of the elements of a cause of action, which the Court stated
will not do.’ ” Id.
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, 671 F.3d at 1190 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949 (2009)). “Accordingly, in
examining a complaint under Rule 12(b)(6), [the court] will
disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the defendant
is liable.” Id. at 1191.
Rule 56(a) provides that summary judgment shall be
granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A party seeking summary judgment bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the pleadings,
depositions, interrogatories, and admissions on file together
with affidavits, if any, which it believes demonstrate the
absence of genuine issues for trial.” Robertson v. Board of
County Comm'rs of the County of Morgan, 78 F.Supp.2d
1142, 1146 (D.Colo.1999) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Mares v. ConAgra Poultry Co., 971
F.2d 492, 494 (10th Cir.1992)). “Once a properly supported
summary judgment motion is made, the opposing party may
not rest on the allegations contained in the complaint, but
must respond with specific facts showing the existence of
a genuine factual issue to be tried.... These facts may be
shown ‘by any of the kinds of evidentiary materials listed
in Rule 56(c), except the mere pleadings by themselves.’ ”
Southway v. Central Bank of Nigeria, 149 F.Supp.2d 1268,
1273 (D.Colo.2001), aff'd, 328 F.3d 1267 (10th Cir.2003).
“Summary judgment is also appropriate when the court
concludes that no reasonable juror could find for the nonmoving party based on the evidence presented in the motion
and response.” Id. “The operative inquiry is whether, based
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on all documents submitted, reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to
a verdict.... Unsupported allegations without ‘any significant
probative evidence tending to support the complaint’ are
insufficient ... as are conclusory assertions that factual
disputes exist.” Id.; Robertson, 78 F.Supp.2d at 1146 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
quoting White v. York lnt'l Corp., 45 F.3d 357, 360 (10th
Cir.1995)). “Evidence presented must be based on more than
‘mere speculation, conjecture, or surmise’ to defeat a motion
for summary judgment.” Southway, 149 F.Supp.2d at 1274.
“Summary judgment should not enter if, viewing the evidence
in a light most favorable to the non-moving party and drawing
all reasonable inferences in that party's favor, a reasonable
jury could return a verdict for that party.” Id. at 1273.
*6 Since the plaintiff is not an attorney, his pleading and
other papers have been construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)
(citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).
Therefore, “if the court can reasonably read the pleadings to
state a claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.... At the same time, ... it is [not] the proper
function of the district court to assume the role of advocate
for the pro se litigant.” Id.
Statute of Limitations. Plaintiff's § 1983 claim is governed
by the two-year statute of limitations contained in § 13–
80–102, C.R.S. See Workman v. Jordan, 32 F.3d 475, 482
(10th Cir.1994); Merrigan v. Affiliated Bankshares of Colo.,
Inc., 775 F.Supp. 1408, 1411–12 (D.Colo.1991). Federal
law, rather than state law, determines when a federal claim
accrues. The statute of limitations begins to run when the
plaintiff knows or has reason to know of the existence and
cause of injury which is the basis of his action. Industrial
Constructors Corp. v. United States Bur. of Reclamation, 15
F.3d 963, 969 (10th Cir.1994). Dismissal under Fed.R.Civ.P.
12(b)(6) is proper when the Complaint indicates on its face
that the statute of limitations has expired. See Aldrich v.
McCulloch Props. Inc., 627 F.2d 1036, 1041 n.4 (10th
Cir.1980).
Here, the original Complaint was dated April 15, 2014
(Docket No. 1 at 13), and was filed on April 25, 2014. Under
the prison “mailbox rule,” the Complaint should be deemed
“filed” at the moment of its delivery to prison authorities
for forwarding to the District Court. See Houston v. Lack,
487 U.S. 266, 275 (1988). Plaintiff avers therein and in
the Amended Complaint that he had conflicts with other
inmates on four separate occasions—two occurred sometime
between July 31, 2009 and August 12, 2011, then next was
on August 12, 2011, and the fourth was on April 25, 2012
—and defendant failed to protect him. (Docket No. 12 at 9).
Defendant asserts that plaintiff's claim was not timely filed
with respect to all incidents other than the alleged altercation
on April 25, 2012, because this action was not commenced
within two years of the date these earlier claims occurred
since at the time of the incidents, plaintiff knew or had reason
to know of the injury which was the basis of his action.
In response, plaintiff essentially argues that the continuing
violation doctrine should be applied to his claims. “Under this
doctrine, a plaintiff may avoid the statute of limitations when
the defendant has acted pursuant to a pattern or longstanding
policy or practice of constitutional violations.” Mercer–Smith
v. New Mexico Children, Youth and Families Dep't, 416
Fed.Appx. 704, 712 (10th Cir. Mar. 21, 2011). Plaintiff's
argument, however, fails because “the doctrine of continuing
violations does not apply to § 1983 claims.” Id. (citing Hunt
v. Bennett, 17 F.3d 1263, 1265 (10th Cir.1994) (holding that
the doctrine of continuing violations does not “extend [ ] ...
to a § 1983 claim”)). See Bartowsheski v. Topless, 2014 WL
3606989, at *2 n.2 (D.Colo. July 21, 2014) (same).
The court finds that plaintiff knew of the existence and cause
of any injuries from the incidents that occurred more than
two years before he commenced this action. Furthermore,
plaintiff is not an inexperienced litigator, as evidenced by
the many previous civil actions he has brought in this court,
including at least two others which also involved Eighth
Amendment claims concerning his being housed with gang
members. See, e.g., Civil Action Nos. 08–cv–02506–ZLW–
BNB (Docket No. 3); 09–cv–02325–CMA–BNB (Docket
No. 3 at 8). Nevertheless, here he failed to bring his claims
concerning the first three incidents in a timely manner, and he
has established no basis for tolling the statute of limitations.
Therefore, plaintiff's claims based on the first three alleged
incidents are time barred, and the only timely claim which
remains concerns the alleged April 2012 incident.
*7 Exhaustion. The PLRA provides that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
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such administrative remedies are available are exhausted.”
42 U.S.C. § 1997e(a). The PLRA requires exhaustion as a
“precondition” to bringing litigation and requires dismissal
where a litigant has failed to complete exhaustion before
initiating a suit. See Fitzgerald v. Corrections Corp. of Am.,
403 F.3d 1134, 1140–41 (10th Cir.2005). This exhaustion
requirement “is mandatory, and the district court [is] not
authorized to dispense with it.” Beaudry v. Corrections Corp.
of Am., 331 F.3d 1164, 1167 n.5 (10th Cir.2003). Section
“1997e(a)'s exhaustion requirement applies to all prisoners
seeking redress for prison circumstances or occurrences.”
Porter v. Nussle, 534 U.S. 516, 520 (2002). The “failure to
exhaust is an affirmative defense under the PLRA, and ...
inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Jones v. Bock, 549 U.S.
199, 216 (2007). As an affirmative defense, “the burden of
proof for the exhaustion of administrative remedies in a suit
governed by the PLRA lies with the defendant.” Roberts v.
Barreras, 484 F.3d 1236, 1241 (10th Cir.2007).
“When raising an affirmative defense in a motion for
summary judgment, ‘[t]he defendant ... must demonstrate
that no disputed material fact exists regarding the affirmative
defense asserted.’ ... ‘If the defendant meets this initial
burden, the plaintiff must then demonstrate with specificity
the existence of a disputed material fact.’ ... ‘If the plaintiff
fails to make such a showing, the affirmative defense bars
his claim, and the defendant is entitled to summary judgment
as a matter of law.’ ” Sparks v. Foster, 241 Fed.Appx.
467, 472, 2007 WL 1748509, at *4 (10th Cir.2007) (quoting
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997)). This
court finds that the plaintiff has not made such a showing.
The Colorado Department of Corrections (“CDOC”) has
a multi-step administrative grievance process available to
inmates set forth in its regulations which entails first a written
informal grievance and then a formal three-step written
grievance procedure. See CDOC Administrative Regulation
850–4. The Tenth Circuit has found that an inmate must
appeal his grievance through all available channels to exhaust
his administrative records fully. See Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir.2002) (“An inmate who begins
the grievance process but does not complete it is barred from
pursuing a § 1983 claim under PLRA for failure to exhaust
his administrative remedies.”). Here, defendant has shown
that despite plaintiff's familiarity with the grievance process,
plaintiff failed to avail himself of it with respect to his claim
that defendant failed to protect him from an incident which
allegedly occurred on or about April 25, 2012.
In response, plaintiff asserts he has exhausted the
administrative remedies available because case managers
allegedly have refused grievances on this matter twice. In
support of this assertion, plaintiff references Exhibit A–4
from Civil Action No. 08–cv–02506–ZLW–BNB, and the
Nature of Case section of his Complaint in this action. The
court reviewed the docket sheet in Civil Action No. 08–cv–
02506–ZLW–BNB and did not find any link or mention of
Exhibit A–4 in any of the 205 docket entries. The court did
not open and search through the documents filed in that earlier
case because it is not the court's responsibility to track down
plaintiff's exhibits. With respect to the plaintiff's Nature of the
Case section in the original Complaint in this action, plaintiff
stated in pertinent part, “On March 19, 2014 the plaintiff
went to his case manager Mr. Cantin and asked him for
grievance process forms for the following issues. Mr. Cantin
informed the plaintiff that these issues were non-grivable [sic]
an [sic] must be taken to court.” (Docket No. 1 at 6). Plaintiff
made a similar claim in his Response. (Docket No. 32 at 2–
3). Plaintiff further contends in his Response that the issue
of guards placing him in harm was grieved (citing Exhibit
I), again demonstrating indifference about placing him with
STG prisoners. He claims he did not file another grievance
because he was not allowed to do so. (Docket No. 32 at 3).
Furthermore, he contends if a prisoner is unable to obtain
grievance forms, no administrative remedy is “available,”
the prisoner may file in court, and defendant cannot claim
plaintiff has not exhausted administrative remedies that are
not available.
*8 The court notes that plaintiff's Exhibit I referenced by
plaintiff in his Response is a Grievance Form dated June
26, 2009. That grievance concerns a claim by plaintiff that
he was being forced into a violent situation by four CDOC
employees, and he requested therein that he be removed from
that violent facility and be given an apology by the four
officers who assaulted him. (Docket No. 32 at 16). This
Exhibit has no relevance to the issue of whether plaintiff
exhausted his administrative remedies with respect to his
claim of having been assaulted in April 2012, almost three
years after Exhibit I was submitted.
There is a recognized exception to the exhaustion requirement
when an inmate has been prevented from filing a grievance.
See Jernigan, 304 F.3d at 1032. “When prison officials block
a prisoner's access to the grievance process, the administrative
remedies are not ‘available’ to the prisoner and, therefore,
do not need to be exhausted prior to initiation of [an] ...
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Allen v. Falk, Not Reported in F.Supp.3d (2015)
action.” Main v. Martin, 2009 WL 215404, *5 (D.Colo. Jan.
22, 2009). Plaintiff, however, has provided no more than his
unsupported, unsworn conclusory allegation that he was not
permitted to file a grievance concerning the claims raised in
this civil action. Moreover, as correctly noted by defendant in
the Reply, pursuant to the plain language of the administrative
regulation concerning grievances, inmates must file their
first grievance (step 1) “within 30 days of the discovery of
the issue or complaint ....” AR 850–04. Therefore, plaintiff
should have filed his Step I Grievance at the latest by on
May 25, 2012, yet in his Response he indicates he did not
even attempt to do so until almost two years later on March
19, 2014. Therefore, even if plaintiff did in fact ask for a
grievance form in 2014, his claim is not saved. Plaintiff
thus has not created a genuine issue of material fact so as
to defeat defendant's summary judgment motion. See White
v. Tharp, 2008 WL 596156, *10 (D.Colo. Feb. 29, 2008)
(Inmate plaintiff never provided copies of his grievances to
the court or any actual evidence that would allow the court to
conclude that they were filed. Plaintiff provided no more than
his unsupported conclusory allegations regarding defendants'
alleged obstruction of his use of the administrative process,
which were not sufficient to create a genuine issue of material
fact.); Brooks v. Johnson, 2008 WL 906130 (D.Colo. Feb. 15,
2008) (Inmate plaintiff merely stated in his response that he
did file an appeal and that grievance forms are frequently lost,
misplaced, or destroyed. The absence of any evidence, other
than plaintiff's allegation in his response, was insufficient.),
adopted by 2008 WL 906839 (D.Colo. Mar. 31, 2008), aff'd,
307 Fed.Appx. 247 (10th Cir. Jan. 16, 2009), cert. denied, 558
U.S. 854 (2009).
“Rule 56(e) permits a proper summary judgment motion to
be opposed by any of the kinds of evidentiary materials listed
in Rule 56(e), except the mere pleadings themselves .....”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
absence of any evidence, other than plaintiff's allegation
in his response, is insufficient. See Sparks v. Foster, 241
Fed.Appx. at 474 (inmate plaintiff was required to go beyond
his pleadings and set forth specific facts to show he was
denied grievance forms or was prevented from exhausting
available administrative remedies); Maclary v. Carroll, 142
Fed.Appx. 618, 2005 WL 1883843 (3rd Cir. Aug. 9, 2005)
(In response to an affidavit stating the inmate plaintiff filed
no grievances concerning the conditions at issue, the inmate
merely responded that he filed unanswered and unprocessed
grievances and letters to prison officials, but he did not
offer any support for those bare assertions. Court found his
opposition to defendants' summary judgment motion did not
create a genuine issue for trial.); Brooks v. Conway, 2007 WL
951521, at *4 (W.D.N.Y. Mar. 28, 2007) (Inmate plaintiff's
“bald and conclusory assertions” that the defendants lost his
grievance papers were, without more, insufficient to avoid
summary judgment on plaintiff's claim based on failure to
exhaust.). See Sparks v. Rittenhouse, 2007 WL 987473,
at *6 (D.Colo. Mar. 29, 2007) (Court cannot consider the
factual assertions by the plaintiff in his brief for purposes
of determining whether he can establish a constitutional
violation.), aff'd, 314 Fed.Appx. 104 (10th Cir. Sept. 16,
2008). See also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (“[W]hen a properly supported motion for
summary judgment is made, the adverse party ‘must set
forth specific facts showing that there is a genuine issue
for trial.’ ”) (emphasis added); Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158 n.17 (1970) (unsworn statement
submitted in support of a motion for summary judgment
does not meet the requirements of Fed.R.Civ.P. 56(e)). To
find otherwise would permit any inmate to circumvent the
exhaustion requirement merely by making bald allegations
of denial of grievance forms or other purported acts of
obstruction of the administrative process.
*9 Despite this finding, the court will proceed to address the
merits of plaintiff's Eighth Amendment claim below.
Official Capacity. Defendant correctly assert that to the
extent the plaintiff is suing him in his official capacity
for damages, defendant is entitled to immunity pursuant
to the Eleventh Amendment. It is well established that
“neither a State nor its officials acting in their official
capacities are ‘persons' under § 1983,” Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 (1989), and that
“the Eleventh Amendment precludes a federal court from
assessing damages against state officials sued in their official
capacities because such suits are in essence suits against the
state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.1994).
Therefore, to the extent that the plaintiff's claim against the
defendant is against defendant in his official capacity for
monetary damages, such relief is barred by the Eleventh
Amendment, and summary judgment should enter for the
defendant on any such claim.
Eighth Amendment Claim. Defendant asserts that there was
no violation of the plaintiff's Eighth Amendment rights.
“[T]he treatment a prisoner receives in prison and the
conditions under which he is confined are subject to the
scrutiny of the Eighth Amendment.” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (citation omitted). The Eighth
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Allen v. Falk, Not Reported in F.Supp.3d (2015)
Amendment prohibits the infliction of “cruel and unusual
punishments.” U.S. CONST. Amed. VIII. Certain conditions
of confinement, if they inflect pain unnecessarily and
wantonly, may constitute cruel and unusual punishment under
the Eighth Amendment. Whitley v. Albers, 475 U.S. 312. 319
(1986). “An inmate making a direct challenge to conditions
of confinement under the 8 th Amendment, must show that,
judged by contemporary standards of decency, the conditions
either involve the wanton and unnecessary infliction of pain,
that they are grossly disproportionate to the severity of the
crime, or that they entail serious deprivation of basic human
needs.” Georgacarakos v. Wiley, 2010 WL 1291833, at
*11 (D.Colo. Mar. 30, 2010) (internal quotation marks and
citation omitted). “Prison officials must ... take reasonable
measures to guarantee those inmates' safety.” Id. (citation
omitted). “[P]rison officials have a duty ... to protect prisoners
from violence at the hands of other prisoners.” Farmer, 511
U.S. at 833 (internal quotation marks and citation omitted). “It
is not, however, every injury suffered by one prisoner at the
hands of another that translates into constitutional liability for
prison officials responsible for the victim's safety.” Id. at 834.
“An Eighth Amendment claim includes both an objective
component, whether the deprivation of a basic human need
is sufficiently serious, and a subjective component, whether
the officials acted with a sufficiently culpable state of mind.”
Matthews v. Wiley, 744 F.Supp.2d 1159, 1176 (D.Colo.2010).
The objective component addresses whether plaintiff is
“incarcerated under conditions posing a substantial risk of
serious harm,” Farmer, 511 U.S. at 834, which includes
“official conduct that is sure or very likely to cause serious
injury at the hands of other inmates.” Benefield v. McDowall,
241 F.3d 1267, 1272 (10th Cir.2001) (internal quotation
marks and citation omitted.). “The subjective component
follows from the principle that only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.”
Matthews, 744 F.Supp.2d at 1176 (quotations omitted).
*10 The court finds that plaintiff has not shown an
Eighth Amendment claim against defendant for deliberate
indifference to an objectively serious risk to his safety.
Plaintiff alleges that over a period of about five years, he
had isolated conflicts with four individuals. Plaintiff does not
allege that these individuals or the incidents were connected,
nor does he allege that he had any pre-existing concerns
regarding any of these four individuals other than having a
general concern about potential violence by STG inmates.
Moreover, he does not allege that he ever reported any
concerns about these individuals or specific STG groups to
the defendant or that defendant was otherwise apprised of any
substantial risk of serious harm to plaintiff to which defendant
was subsequently deliberately indifferent. “Being subjected
to the mere possibility of assault from another inmate is not
sufficiently serious to give rise to an Eighth Amendment
violation.” Bingaman v. Torrez, 2012 WL 6762218, at *5
(D.Colo. Nov. 5, 2012), adopted by 2013 WL 50428 (D. Colo.
Jan 3, 2013). An Eighth Amendment claim is not stated by
alleging generally that as “a sex offender, [plaintiff] faced
‘serious risks of intimidation, threats, and violence shared
by all sex offenders while in prison.’ ” Id. See Pacheco v.
Timme, 2012 WL 4049833, at *9 (D.Colo. Aug. 1, 2012)
(“Plaintiff alleges that his life and well-being are being placed
in jeopardy by his sex offender classification.... Because
Plaintiff has not identified any actual threats, this is not a valid
Eighth Amendment Claim.”), adopted by 2012 WL 4049831
(D.Colo. Sept. 13, 2012) (citing Riddle v. Mondragon, 83
F.3d 1197 (10th Cir.1996) (plaintiff failed to allege any
specific threat to his personal safety, much less conditions that
pose “a substantial risk of serious harm”)).
Based upon the finding above, summary judgment should
enter for the defendant on plaintiff's Eighth Amendment
claim.
Plaintiff's Second Motion Pursuant to Rule 65
Plaintiff moves pursuant to Fed.R.Civ.P. 65 “to maintaine
[sic] status quo.” (Docket No. 27). He asks the court “for a
preliminary injuction 1 [sic] preventing the defendants from
transferring the plaintiff to another facility or transfer station
for the intire [sic] duration of this case.” (Docket No. 27).
1
ln his Reply, plaintiff indicates that he is seeking a TRO.
(Docket No. 44 at 1).
“A [TRO] or preliminary injunction is extraordinary relief.”
Statera, Inc. v. Hendrickson, 2009 WL 2169235, *1 (D.Colo.
July 17, 2009). Injunctive relief should be granted only when
the moving party clearly and unequivocally demonstrates
its necessity. See Schrier v. University of Colo., 427 F.3d
1253, 1258 (10th Cir.2005). In the Tenth Circuit, the party
requesting injunctive relief must establish that: (1) the party
will suffer irreparable injury unless the injunction issues;
(2) the threatened injury outweighs whatever damage the
proposed injunction may cause the opposing party; (3) the
injunction, if issued, would not be adverse to the public
interest; and (4) there is a substantial likelihood of success on
the merits. Id. “In addition to the foregoing factors, a party
seeking a[TRO] also must demonstrate clearly, with specific
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Allen v. Falk, Not Reported in F.Supp.3d (2015)
factual allegations, that immediate and irreparable injury will
result absent a[TRO].” Statera, 2009 WL 2169235, *1.
gang makes it difficult to determine who, in particular, may
pose a risk to him as alleged. (Docket No. 3 at ¶ 22).
Furthermore, “[b]ecause the limited purpose of a preliminary
injunction is merely to preserve the relative positions of
the parties until a trial on the merits can be held, ...
[the Tenth Circuit has] identified the following three
types of specifically disfavored preliminary injunctions ...
(1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary
injunctions that afford the movant all the relief that [he] could
recover at the conclusion of a full trial on the merits.” Schrier,
427 F.3d at 1258–59 (citation and quotations omitted). “Such
disfavored injunctions ‘must be more closely scrutinized to
assure that the exigencies of the case support the granting of
a remedy that is extraordinary even in the normal course.’ ”
Id. at 1259.
2
Here, this court finds that the plaintiff has not made the
requisite showing. “A presumption of irreparable injury
exists where constitutional rights are infringed.” Bomprezzi
v. Hoffman, 2014 WL 6617096, at *4 (D.Colo. Nov. 21,
2014) (citing Kikumura v. Hurley, 242 F.3d 950, 963 (10th
Cir.2001)). Based upon the findings above, however, plaintiff
has failed to establish a likelihood of success on his Eighth
Amendment claim. As a result, he is not entitled to a
presumption of irreparable injury. “Determining whether
irreparable harm exists can be a difficult and close question.”
Id. (citing Dominion Video Satellite, Inc. v. Echostar Satellite
Corp., 356 F.3d 1256, 1263 (10th Cir.2004)). “[T]he concept
of irreparable harm does not readily lend itself to definition,
nor is it an easy burden to fulfill. In defining the contours
of irreparable harm, case law indicates that the injury must
be both certain and great, and that it must not be merely
serious or substantial.” Id. (internal quotations and citations
omitted). Injunctive relief is issued “to prevent existing or
presently threatened injuries.” Connecticut v. Massachusetts,
282 U.S. 660, 674 (1931). Such relief “will not be granted
against something merely feared as liable to occur at some
indefinite time in the future.” Id.
*11 Plaintiff has made no showing in his motion that he is
currently threatened with immediate and irreparable injury.
Furthermore, in his Response (Docket No. 35), defendant
states that at the present time, plaintiff is in a facility which
houses no known custody issues of plaintiff, that there are
STG members at every prison in the state, 2 and thus there are
no “STG–Free” facilities in which plaintiff could be housed.
In addition, plaintiff's failure to identify a particular STG or
Defendant states that there are approximately 83
different identified major STG groups known within the
CDOC, and of those groups there are approximately
190 different sub-groups which may congregate around
issues of race and ethnicity. Furthermore, there are
currently approximately 3,100 identified STG members
throughout CDOC's facilities, and that number increases
to approximately 8,000 offenders when associates and
suspected members are accounted for. (Docket No. 35 at
2).
Because the plaintiff has failed to establish that there is a
substantial likelihood that he will prevail on the merits and
that he will suffer irreparable injury unless the injunction
issues, I need not address the remaining requirements for
injunctive relief.
Plaintiff's Motion for Joinder of Parties
Plaintiff moves pursuant to Fed.R.Civ.P. 19 for joinder of
several parties. He notes that he seeks injunctive relief to
restrain the CDOC from placing him with STG prisoners
in the same facility, and defense counsel responded that
Warden Falk has no authority to provide such relief.
Therefore, plaintiff asks that the CDOC and Executive
Director Rick Ramish [sic] be joined as parties who can
grant relief. In addition, plaintiff asks for joinder of Paul
Hollenbeck, Associate Director of Offender Service, who
has stated he is responsible for plaintiff's classification and
overall management and has personally approved plaintiff's
placement with STG prisoners. Next, plaintiff asks for the
joinder of Warden Designees # 1,2, and 3, who are employees
of the CDOC working at SCF, for their personal participation
in placing and allowing plaintiff to be attacked by STG
prisoners.
Rule 19, however, “is not the mechanism which would afford
[plaintiff] the relief he seeks. The Tenth Circuit has explained
that, in circumstances where a party seeking affirmative relief
(i.e. a plaintiff ...) seeks to add a party-defendant, Rule 19
is ‘inapplicable, because while it provides for the Joinder of
Persons Needed for Just Adjudication, ... it does not provide
a joinder mechanism for plaintiffs.’ ” Unit Petroleum Co. v.
Frost, 2013 WL 1398987, at *1 (N.D.Okla. Apr. 5, 2013)
(quoting Shaw v. AAG Eng'g & Drafting Inc., 138 Fed.Appx.
62, 66 (10th Cir.2005)) (internal quotations omitted). Rule 19
“is not a means by which a plaintiff can join a truly liable
defendant....” Birmingham v. Experian Info. Solutions, Inc.,
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Allen v. Falk, Not Reported in F.Supp.3d (2015)
633 F.3d 1006, 1021 (10th Cir.2011). See Glancy v. Taubman
Centers, Inc., 373 F.3d 656, 669 (6th Cir.2004) (“Rule 19 is
the tool of the defendant, as the plaintiff has the power to
choose which parties it wishes to sue and generally has ample
freedom to amend its complaint to add a party.”). See also
Fed.R.Civ.P. 12(b)(7) (referring to “defense” of “failure to
join a party under Rule 19”).
“Rule 15(a) governs the addition of a party ... because it is
actually a motion to amend.” United States ex rel. Precision
Co. v. Koch Indus., Inc., 31 F.3d 1015, 1018 (10th Cir.1994).
Pursuant to Fed.R.Civ.P. 15(a)(2), “[t]he court should freely
give leave [to amend] when justice so requires.” “Refusing
leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir.2009) (quoting Frank
v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993)).
Here, based upon the findings above, this court finds that
plaintiff's motion should be denied on the basis of futility of
amendment.
RECOMMENDED that Plaintiff's Second Motion Persent
[Sic] Frcp [Sic] 65 (Docket No. 27) be denied. It is further
RECOMMENDED that Plaintiff's Motion for Joinder of
Parties (Docket No. 42) be denied.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and
Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days
after service of this recommendation to serve and file
specific written objections to the above recommendation
with the District Judge assigned to the case. A party
may respond to another party's objections within fourteen
(14) days after being served with a copy. The District
Judge need not consider frivolous, conclusive, or general
objections. A party's failure to file and serve such
written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn,
474 U.S. 140, 148–53 (1985), and also waives appellate
review of both factual and legal questions. Makin v.
Colorado Dep't of Corrections, 183 F.3d 1205, 1210 (10th
Cir.1999); Talley v. Hesse, 91 F.3d 1411, 1412–13 (10th
Cir.1996).
*12 WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED that Defendant's Motion to Dismiss
Plaintiff's Amended Complaint (Doc. 12) or Alternatively,
Motion for Summary Judgment (Docket No. 25) be granted.
It is further
End of Document
Date: December 18, 2014
All Citations
Not Reported in F.Supp.3d, 2015 WL 156777
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10
Vaughan v. Ellis County, Not Reported in F.Supp.2d (2014)
2014 WL 910125
2014 WL 910125
Only the Westlaw citation is currently available.
United States District Court,
D. Kansas.
David VAUGHAN, Plaintiff,
v.
ELLIS COUNTY and its Representatives, the Board
of County Commissioners of Ellis County; and Ed
Harbin, in his individual capacity, Defendants.
Signed No. 13–2283–CM.
|
March 10, 2014.
Attorneys and Law Firms
Kelly J. Trussell, Kori C. Trussell, Kauffman & Eye, Topeka,
KS, for Plaintiff.
Allen G. Glendenning, Watkins Calcara, Chtd., Great Bend,
KS, for Defendants.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
*1 From 2004 to 2011, plaintiff David Vaughan worked
for the Ellis County Sheriff's Department under Sheriff Ed
Harbin. In March 2011, plaintiff reported an incident between
a jailer and an inmate, detailing the jailer's repeated use of
physical force and a stun gun. After this report, plaintiff
claims that Sheriff Harbin retaliated against plaintiff by
violating the Americans with Disabilities Act (“ADA”) when
plaintiff requested a reasonable accommodation at work.
Plaintiff also claims that he was constructively discharged
from his job in September 2011. Represented by counsel,
plaintiff filed the instant case and brought a number of claims,
including a First Amendment claim under 42 U.S.C. § 1983
against Sheriff Harbin and an ADA claim against Ellis County
and its Representatives, the Board of County Commissioners
of Ellis County.
The matter is before the court on defendants' Motion to
Dismiss. (Doc. 15.) Defendants ask the court to grant their
motion to dismiss on multiple grounds. Plaintiff concedes
several of defendants' arguments and/or clarifies that he did
not, in fact, intend to bring such claims. Based on plaintiff's
representations in his response, the court dismisses any
claim under the ADA against defendant Harbin personally,
plaintiff's common law whistleblower claim, and plaintiff's
§ 1983 claim against defendant Ellis County and its
Representatives, the Board of County Commissioners of Ellis
County.
Several arguments remain before the court. First, defendants
argue that the Board of County Commissioners is not a
proper defendant, requiring dismissal of the ADA claim
against it. Second, defendants contend that plaintiff's §
1983 claim against defendant Harbin is time-barred. And
third, defendants alternatively claim that qualified immunity
protects defendant Harbin against § 1983 liability. For the
following reasons, the court denies defendants' motion to
dismiss in part and grants it in part.
I. FACTUAL BACKGROUND
The following timeline shows the events relevant to
resolution of this motion:
Date
Event(s)
August 2009
Plaintiff informed his employer about his
diabetes and depression. (Doc. 12 at 2.)
March 2011
Plaintiff submitted a voluntary statement
regarding an incident between a jailer and
an inmate. In that statement, plaintiff alleged
that the jailer used unnecessary force on the
inmate. (Id.)
April 2011
Plaintiff requested a reasonable
accommodation for his disabilities. (Id.)
Sometime before May 19, 2011
1
”Defendant” (1) denied plaintiff's request
for reasonable accommodation; (2)
responded to the request in a “retaliatory,
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1
Vaughan v. Ellis County, Not Reported in F.Supp.2d (2014)
2014 WL 910125
threatening, and/or harassing manner”; and
(3) improperly asked for protected medical
information. (Id.; Doc. 7–1 at 2.)
1
The dates of these alleged actions are absent from
plaintiff's amended complaint. But they are identified
in plaintiff's Kansas charge of discrimination. (Doc. 7–
1 at 2.) Although plaintiff did not attach the charge
to his complaint, he refers to his Equal Employment
Opportunity Commission (“EEOC”) charge in the
complaint, which in turn refers to the Kansas charge.
Because exhaustion of administrative remedies is
required before filing suit, the charges are integral to
the claims before the court. The court can therefore
consider the Kansas charge of discrimination in ruling
on the motion to dismiss. See GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th
Cir.1997) (“[I]f a plaintiff does not incorporate by
reference or attach a document to its complaint, but
the document is referred to in the complaint and is
central to the plaintiff's claim, a defendant may submit an
indisputably authentic copy to the court to be considered
on a motion to dismiss.”).
On or about Sept. 21,
Plaintiff alleges he
2011
was constructively
discharged. (Doc. 12 at
3.)
June 11, 2013
Plaintiff filed his
complaint after timely
requesting a right-to-sue
letter from the EEOC.
(Id.)
III. ANALYSIS
A. The Board and/or Ellis County: Proper Defendants?
*2 Defendants contend that the Board of County
Commissioners is not a proper defendant because a
county board of commissioners has no oversight over a
sheriff's department and therefore no vicarious liability for
employment practices of the sheriff. See Blume v. Meneley,
283 F.Supp.2d 1171, 1175 (D.Kan.2003). The sheriff is
an independently-elected state officer who has the ultimate
responsibility for employment actions under Kansas statutes.
See Seifert v. Unified Gov't of Wyandotte Cnty./Kan. City,
Kan., 11–2327–JTM, 2012 WL 2448932, at *6 (D. Kan.
June 26, 2012) (explaining that while a board of county
commissioners has the power to set policy, it doesn't
supersede the sheriff's power to control his office). This law
suggests that the court should dismiss the Board as a party.
But plaintiff has been deliberate in his naming of this
defendant: Instead of merely naming the Board, he has named
“Ellis County and its Representatives, the Board of County
Commissioners of Ellis County.”This designation appears to
be an attempt to comply with Kan. Stat. Ann. § 19–105, which
provides that all suits against a county should be brought
against the Board of County Commissioners. Plaintiff claims
that Ellis County is his employer—responsible for ADA
violations—but has recognized that instead of naming the
county, Kansas statute provides that he should name the
Board.
In light of Kan. Stat. Ann. § 19–105, the court concludes that
plaintiff has properly named defendant Ellis County and its
Representatives, the Board of County Commissioners of Ellis
County, in this lawsuit. It does not appear that plaintiff has any
other option, as he must name his employer under the ADA
—not an individual defendant. The court denies this portion
of defendants' motion.
B. Timeliness of § 1983 Claim
Defendants next contend that plaintiff's § 1983 claim against
defendant Harbin is untimely because he alleges retaliatory
acts in March–May 2011, but he did not file his claim until
June 2013. Plaintiff clarifies in his response that his § 1983
claim is for constructive discharge (which did not occur until
September 21, 2011)—not the underlying acts of retaliation
that led to the discharge. According to plaintiff, he only listed
those acts as evidence of retaliatory intent.
Constitutional claims pursuant to 42 U.S.C. § 1983 are subject
to Kansas's two-year statute of limitations set forth in Kan.
Stat. Ann. § 60–513(a)(4).Seifert, 2012 WL 2448932, at
*4. Federal courts look at federal law to decide when the
claim accrues. Delatorre v. Minner, 238 F.Supp.2d 1280,
1286 (D.Kan.2002). Under federal law, civil rights claims
accrue when the plaintiff knows or should know that his
constitutional rights have been violated. Id. (citing Beck v.
City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th
Cir.1999)); Dockery v. Unified Sch. Dist. No. 231, 382
F.Supp.2d 1234, 1243 (D.Kan.2005). Generally, the claim
accrues when the alleged unlawful employment practice
occurs-not necessarily when the consequences of the practice
become most painful. Delatorre, 238 F.Supp.2d at 1286. In
the context of a constructive discharge, ordinarily the date
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2
Vaughan v. Ellis County, Not Reported in F.Supp.2d (2014)
2014 WL 910125
of the plaintiff's resignation or announced resignation will
control. Id. at 1288.But the employee must resign within a
reasonable time period after the alleged harassment, or there
was no constructive discharge. Id. (citing Gonzalez Garcia
v. Puerto Rico Elec. Power Auth., 214 F.Supp.2d 194, 204
(D. Puerto Rico 2002) (quoting Landrau -Romero v. Banco
Popular De P.R., 212 F.3d 607, 613 (1 st Cir.2000)); see
also Ulibarri v. Lopex, No. 95–2291, 1996 WL 594281, at
*2 (10th Cir. Oct. 17, 1996) (requiring “some additional act
attributable to his employer-some straw that broke the camel's
back”).
*3 Plaintiff had knowledge of the substantial injury by May
2011. Although plaintiff alleges constructive termination
on September 21, 2011, the claim accrued when plaintiff
knew or should have known his rights were violated. 2
Assuming the facts as plaintiff alleges them, “defendant”
refused plaintiff's request for reasonable accommodations in
a retaliatory, threatening, and/or harassing manner sometime
before May 19, 2011. In plaintiff's Kansas Human Rights
Commission complaint, he alleged that Ellis County and
its representatives committed additional retaliatory behavior
from March 2011 to May 2011. Plaintiff alleged a series
of retaliatory practices that suggest he knew or should have
known his rights were violated well before his constructive
termination. At the latest, then, plaintiff knew or should have
known his rights were violated by May 2011.
2
Plaintiff does not argue for an exception under the
continuing violation doctrine, which applies when a
defendant has committed a longstanding practice of
constitutional violations. But even if plaintiff did
argue for the exception, the argument would fail.
The continuing violation doctrine does not apply to §
1983 claims. Mercer–Smith v. N.M. Children, Youth &
Families Dep't, 416 F. App'x 704, 712 (10th Cir.2011).
Because plaintiff knew by at least May 2011 that his rights
had been violated, the statute of limitations on the § 1983
claim began running then and ran out in May 2013. The
§ 1983 claim filed in June 2013 is untimely and the court
dismisses it.
C. Qualified Immunity
Even if plaintiff's claim could survive a statute of limitations
attack, it cannot withstand the assertion of qualified
immunity. Qualified immunity protects government officials
from individual liability under § 1983 unless their conduct
“violates ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’
“ Schroeder v. Kochanowski, 311 F.Supp.2d 1241, 1250
(D.Kan.2004) (citing Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). When a defendant raises qualified immunity, the
plaintiff must show that (1) the defendant's actions violated
a constitutional or statutory right and (2) the right violated
was clearly established at the time of the conduct in issue. Id.
If the plaintiff fails to meet the first prong, the analysis ends
there and the defendant retains qualified immunity. Id. The
court requires the complaint to contain specific allegations
of fact to demonstrate that the official's actions were not
objectively reasonable in light of clearly established law.
Id.;Van Cleave v. City of Marysville, Kan., 185 F.Supp.2d
1212, 1215 (D.Kan.2002).
The court first decides whether plaintiff has alleged a
deprivation of a constitutional right. Eaton v. Meneley, 379
F.3d 949, 954 (10th Cir.2004). A First Amendment violation
requires that the defendant's action had a deterrent effect on
the plaintiff's speech. Id. The objective standard focuses on
whether the harm is the type that “would chill a person of
ordinary firmness from continuing to engage in the protected
speech.”Id.
Defendant Harbin does not challenge that plaintiff engaged
in protected activity by filing the complaint against the jailer.
(Doc. 20 at 5.) Rather, defendant Harbin argues plaintiff
has not shown that defendant Harbin took any adverse
employment action contemporaneous with or subsequent to
the protected activity. Defendant Harbin argues that plaintiff
has not sufficiently alleged a deprivation of a constitutional
right. The court agrees.
*4 Generally, a plaintiff's factual allegations in his
complaint must be “more than labels, conclusions and a
formulaic recitation of the elements of a cause of action.”In
re Motor Fuel Temperature Sales Practices Litig., 534
F.Supp.2d 1214, 1216 (D.Kan.2008). The court makes all
reasonable inferences in favor of plaintiffs but does not
have to accept legal conclusions as true.Id. The standard
is even higher in § 1983 claims against an official who
is entitled to qualified immunity, where “ ‘[t]he Twombly
standard may have a greater bite ... appropriately reflecting
the special interest in resolving the affirmative defense of
qualified immunity at the earliest possible stage of litigation.’
“ Carnell v. Carr, No. 12–3020–SAC, 2012 WL 6156419, at
*1 (D.Kan. Dec. 11, 2012) (quoting Robbins v. Oklahoma,
519 F.3d 1242, 1249 (10th Cir.2008)).
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
3
Vaughan v. Ellis County, Not Reported in F.Supp.2d (2014)
2014 WL 910125
Specifically, in § 1983 claims, plaintiffs must allege the
violation of a constitutional right and must allege that the
defendant caused the deprivation of the constitutional right.
Meyer v. City of Russell, Kan. Police Dep't, No. 12–1178–
SAC, 2012 WL 4867379, at *4 (D.Kan. Oct. 15, 2012).
This requires “specific, nonconclusory factual allegations”
to allow the court to determine whether qualified immunity
ought to be imposed. Id. In § 1983 actions, the court is
particularly concerned with “who is alleged to have done what
to whom.”Carnell, 2012 WL 6156419, at *2. Because of the
higher standard, § 1983 claims are more likely to fail for
plausibility. Lee v. City of Topeka, No. 10–4126–CM, 2011
WL 720191, at *2 (D.Kan. Feb. 22, 2011).
Here, plaintiff has not specifically identified adverse actions.
Plaintiff merely asserts that “defendant” refused plaintiff's
request for reasonable accommodation, with no explanation
as to why the refusal was inappropriate. (Doc. 12 at 2.)
The complaint does not even specify whether defendant
Harbin was involved in the refusal. Further, plaintiff asserts
that “defendant” “improperly requested protected medical
information.” (Id.) But plaintiff does not explain who
requested the information, why the request was improper, or
why the information was protected. Finally, plaintiff alleges
that he was constructively terminated from his employment
on or around September 21, 2011, without explaining why
or how the working conditions were so difficult that he
had to resign. Later in plaintiff's complaint, he references
End of Document
“[d]efendant Harbin's employment retaliation actions,” but he
still does not specify what those actions are.
Because of the generic language used in plaintiff's complaint,
plaintiff fails to meet the plausibility standard required under
§ 1983 and fails to show a deprivation of a constitutional right.
Qualified immunity therefore protects defendant Harbin from
the § 1983 claim.
V. CONCLUSION
The court denies defendants' motion as it relates to
plaintiff's ADA claim against defendant Ellis County and
its Representatives, the Board of County Commissioners
of Ellis County. The § 1983 claim against defendant
Harbin, however, is dismissed as untimely. Alternatively
and independently, the court finds that defendant Harbin is
entitled to qualified immunity on the claim. All other claims
are dismissed as agreed by the parties.
*5 IT IS THEREFORE ORDERED that defendants'
Motion to Dismiss (Doc. 15) is denied in part and granted in
part.
All Citations
Not Reported in F.Supp.2d, 2014 WL 910125
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4
Matthews v. Rice, Not Reported in F.Supp.2d (2013)
2013 WL 5276128
2013 WL 5276128
Only the Westlaw citation is currently available.
United States District Court,
D. Kansas.
Gary L. MATTHEWS, Plaintiff,
v.
Elizabeth RICE, et al., Defendants.
No. 11–3221–RDR.
|
Sept. 18, 2013.
designated by the KDOC as a sex offender. He requested
sex offender override in 2004. This request was denied on
January 13, 2004. He was released from prison on November
29, 2006.
In 2007, he was charged with robbery and ultimately
convicted. He was sentenced in 2008 and again placed in the
custody of the KDOC. Subsequently, in 2010, he was notified
that he would be treated again as a sex offender. He again
requested sex offender override in 2010, and this request was
denied on September 9, 2010. Plaintiff did not dispute either
the 2004 or the 2010 final order.
Attorneys and Law Firms
Gary Matthews, Hutchinson, KS, pro se.
John Wesley Smith, Whitney L. Casement, Office of
Attorney General, Topeka, KS, for Defendants.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
*1 This matter is presently before the court upon defendants'
motion to dismiss plaintiff's claims under 42 U.S.C. § 1983 as
barred by the statute of limitations. Plaintiff is an inmate in the
custody of the Kansas Department of Corrections (KDOC)
and is incarcerated at the Hutchinson Correctional Facility
in Hutchinson, Kansas. The defendants are the KDOC and
various state officials employed by the KDOC. Proceeding
pro se, plaintiff contends that the defendants have erroneously
classified him as a sex offender. He further claims that the
defendants knew he did not meet the requirements of a sex
offender and continued to classify him as such based upon
a KDOC policy that all inmates charged with sex offenses,
whether convicted or not, shall be registered as sex offenders.
He asserts claims under § 1983, contending that the actions
of the defendants have violated his rights under the First
Amendment, substantive due process, procedural due process
and equal protection. He seeks compensatory and punitive
damages along with injunctive and prospective relief.
I.
In his complaint, plaintiff alleges that in 1996 he was charged
with aggravated kidnapping and rape. He was acquitted
of rape, but convicted of aggravated kidnapping. He was
incarcerated with the KDOC. After incarceration, he was
Plaintiff once again sought sex offender override in 2011, and
this request was denied on June 1, 2011. Following that order,
he filed a petition with the Reno County District Court on
July 13, 2011 challenging the decision made by the KDOC.
The state district court dismissed plaintiff's complaint, finding
that plaintiff's failure to exhaust the administrative process
by challenging the 2004 order deprived the court of subject
matter jurisdiction. The court further noted that even if the
“2004 override denial did not work that effect, petitioner's
subsequent failure to appeal the 2010 denial and untimely
effort to appeal the 2011 denial would similarly deprive
the court of jurisdiction.”Plaintiff filed the instant case on
December 20, 2011.
II.
The defendants contend that plaintiff's claims are barred by
the applicable statute of limitations, which is two years. They
argue that plaintiff's delay in waiting seven years to challenge
the KDOC's original denial of sex offender override in 2004
renders the instant claims barred by the statute of limitations.
Pro se complaints are held to “less stringent standards than
formal pleadings drafted by lawyers.”Haines v. Kerner, 404
U.S. 519, 520 (1972). A pro se litigant is entitled to a liberal
construction of his pleadings. See Trackwell v. U.S. Gov't, 472
F.3d 1242, 1243 (10th Cir.2007)(“Because Mr. Trackwell
proceeds pro se, we review his pleadings and other papers
liberally and hold them to a less stringent standard than those
drafted by attorneys.”). If a court can reasonably read a pro
se complaint in such a way that it could state a claim on
which it could prevail, it should do so despite “failure to cite
proper legal authority ... confusion of various legal theories ...
or [plaintiff's] unfamiliarity with pleading requirements.”Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). But it is
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
1
Matthews v. Rice, Not Reported in F.Supp.2d (2013)
2013 WL 5276128
not the proper role of a district court to “assume the role of
advocate for the pro se litigant.”Id. As it relates to motions
to dismiss generally, “the court accepts the well-pleaded
allegations of the complaint as true and construes them in
the light most favorable to the plaintiff.”Ramirez v. Dept. of
Corr., Colo., 222 F.2d 1238, 1240 (10th Cir.2000). “Wellpleaded” allegations are those that are facially plausible such
that “the court [can] draw the reasonable inference that the
defendant is liable for the misconduct alleged.”Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
*2 While the statute of limitations is generally an affirmative
defense, it may also sometimes “be appropriately resolved
on a Fed.R.Civ.P. 12(b) motion.”Aldrich v. McCulloch Prop.,
Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980). Specifically,
“when the dates given in the complaint make clear that
the right sued upon has been extinguished, the plaintiff has
the burden of establishing a factual basis for tolling the
statute.”Id. The “length of the limitations period” is a question
governed by state law. Wilson v. Garcia, 471 U.S. 261, 269
(1985). The Tenth Circuit Court of Appeals has ruled that
§ 1983 civil right complaints “should be characterized as
actions for injury to the rights of another” and are therefore
governed by K.S.A. § 60–513(a)(4).Hamilton v. City of
Overland Park, Kan., 730 F.2d 613, 614 (10th Cir.1984).
The applicable length of time, according to the statute, is
two years. SeeK.S.A. § 60–513(a)(4). Additionally, for the
purpose of the statute of limitations, § 1983 claims accrue “
‘when the plaintiff knows or has reason to know of the injury
which is the basis of his action.”Johnson v. Johnson Cnty.
Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir.1991) (quoting
Bireline v. Seagondollar, 632 F.2d 185, 191 (2nd Cir.1980)).
III.
The defendants point to Romero v. Lander, 461 Fed.Appx.
661 (10th Cir.), cert. denied,133 S.Ct. 212 (2012) for support.
In Romero, the Tenth Circuit ruled that plaintiff's challenge
under § 1983 to his sex offender classification accrued
when he was classified as a sex offender following an
administrative hearing in 2000, not when the KDOC notified
him in 2009 that it had reviewed his sex offender treatment
End of Document
and monitoring program file and determined to reimpose the
sex offender classifications. Romero, 461 Fed.Appx. at 668.
The Court noted that plaintiff's alleged injuries stemmed from
the original 2000 designation. Id. at 669.Accordingly, the
Court found that plaintiff's claims were barred by the statute
of limitations. Id.
The court agrees with the defendants and finds that the
reasoning of Romero controls. Here, plaintiff knew or should
have known of the alleged constitutional violations giving rise
to his claims at the time when he was first classified as a
sex offender. He requested sex offender override in 2004 and
failed to take any action concerning the denials of his requests
until 2011 when he filed a petition in state court. His efforts
to challenge the classification came long after the expiration
of the two-year statute of limitations.
Plaintiff has suggested that the continuing violation doctrine
should apply to his claims. This court is not persuaded that
the continuing violation doctrine is applicable to claims under
§ 1983. See Mercer–Smith v. New Mexico Children, Youth
and Families Dept., 416 Fed.Appx. 704, 712 (10th Cir.2011).
However, even if it applies, the exception is triggered by
a continuous series of unlawful acts, not by the continuing
effects of the original violation. See Parkhurst v. Lampert,
264 Fed.Appx. 748, 749 (10th Cir.2008). In this case, plaintiff
is alleging the same ill effects from the first denial of
his request for sex offender status override in 2004. The
constitutional claims asserted by plaintiff all arise from the
KDOC's 2004 decision. Accordingly, the court does not find
that the continuing violation doctrine applies. Accordingly,
the court must dismiss plaintiff's claims because they are
barred by the two-year statute of limitations.
*3 IT IS THEREFORE ORDERED that defendants'
motion to dismiss (Doc. # 36) be hereby granted. Plaintiff's
claims are barred by the statute of limitations.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 5276128
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© 2015 Thomson Reuters. No claim to original U.S. Government Works.
2
Muhammad v. Court of Common Pleas of Allegheny County, Pa., 483 Fed.Appx. 759...
483 Fed.Appx. 759
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally
governing citation of judicial decisions issued
on or after Jan. 1, 2007. See also Third Circuit
LAR, App. I, IOP 5.7. (Find CTA3 App. I, IOP 5.7)
United States Court of Appeals,
Third Circuit.
West Headnotes (2)
[1]
Pennsylvania court defendants' repeated denials
of accommodations did not amount to a series of
continuing violations bringing all such conduct
within the limitations period for bringing
plaintiff's civil rights claims; each refusal
to accommodate plaintiff's impaired vision at
various stages during his numerous state court
lawsuits was a complete and independent act
of which plaintiff was aware, thereby triggering
running of statute of limitations. 42 U.S.C.A. §
1983; 42 Pa.C.S.A. § 5524.
Akhi Raheem MUHAMMAD, Appellant
v.
COURT OF COMMON PLEAS OF ALLEGHENY
COUNTY, PENNSYLVANIA; Commonwealth
Court of Pennsylvania; Supreme Court of
Pennsylvania; Pennsylvania Superior Court.
No. 11–3669. | Submitted Pursuant
to Third Circuit LAR 34.1(a) May 11,
2012. | Opinion Filed: May 15, 2012.
Synopsis
Background: Vision-impaired plaintiff brought action
against Pennsylvania court defendants, alleging that they
violated Americans with Disabilities Act (ADA), and the
Rehabilitation Act by repeatedly failing to reasonably
accommodate his impaired vision at various stages during
his numerous state court lawsuits. Adopting report and
recommendation of a United States Magistrate Judge, 2011
WL 4368394, the United States District Court for the Western
District of Pennsylvania, Joy Flowers Conti, J., 2011 WL
4368724, dismissed the complaint, and plaintiff appealed.
Limitation of Actions
Liabilities Created by Statute
5 Cases that cite this headnote
[2]
Civil Rights
Particular Causes of Action
Because vision-impaired plaintiff was only
required to allege that he was unable to
meaningfully participate in his state court cases
because he did not receive accommodations
to enable him to participate in the manner
of a non-visually impaired individual, plaintiff
stated failure-to-accommodate claims against
Pennsylvania court defendants under Americans
with Disabilities Act (ADA). Americans with
Disabilities Act of 1990, § 202, 42 U.S.C.A. §
12132.
11 Cases that cite this headnote
Holdings: The Court of Appeals held that:
[1] defendants' repeated denials of accommodations did not
amount to a series of continuing violations bringing all such
conduct within the limitations period for bringing plaintiff's
civil rights claims, and
[2] plaintiff stated failure-to-accommodate claims against
Pennsylvania court defendants under Americans with
Disabilities Act (ADA).
Affirmed in part, vacated in part, and remanded.
*759 On Appeal from the United States District Court for
the Western District of Pennsylvania, (D.C. Civil Action No.
09–cv–01255), District Judge: Honorable Joy Flowers Conti.
Attorneys and Law Firms
Akhi Raheem Muhammad, Beverly Hills, CA, pro se.
Mary E. Butler, Esq., Geri R. St. Joseph, Esq., Supreme
Court of Pennsylvania Administrative Office of Pennsylvania
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Muhammad v. Court of Common Pleas of Allegheny County, Pa., 483 Fed.Appx. 759...
Courts, Philadelphia, PA, for Court of Common Pleas
of Allegheny County, Pennsylvania; Commonwealth Court
of Pennsylvania; *760 Supreme Court of Pennsylvania;
Pennsylvania Superior Court.
removal of [Muhammad's] kufi, a
religious head covering, at legal
proceedings in the courtrooms of
various Allegheny County judges ...
between 2004 and 2008; and (7)
a 2009 lawsuit against Allegheny
County Adult Probation and Parole
over some money [Muhammad] paid
them to secure the release of his
incarcerated nephew.
Before: SLOVITER, SMITH and COWEN, Circuit Judges.
OPINION
PER CURIAM.
**1 Appellant Akhi Raheem Muhammad, proceeding
pro se, appeals from the District Court's order granting
the defendant-appellees' motion to dismiss Muhammad's
complaint under 42 U.S.C. § 1983. For the reasons that
follow, we will affirm in part, vacate in part, and remand for
further proceedings.
I
In July 2008, Muhammad—an experienced litigant—filed
in the United States District Court for the Eastern District
of Pennsylvania a complaint under 42 U.S.C. § 1983,
alleging that some 200 defendants violated his civil rights.
He sought, inter alia, permanent injunctive relief requiring
the Pennsylvania state courts to address the needs of disabled
litigants, as well as damages and court costs. As Judge Padova
of the Eastern District noted, Muhammad's second amended
complaint, which was nearly 70 pages long, stemmed from at
least seven discrete series of occurrences, including:
(1) a 2004 automobile accident in
Pittsburgh and related litigation in
Allegheny County from 2004 to 2007;
(2) the issuance of two traffic citations
in Millvale, Pennsylvania[,] in 2005,
and related litigation in Allegheny
County from 2005 to 2007; (3) a
legal malpractice lawsuit initiated in
Allegheny County in July 2005, and
related litigation there from 2005 to
2007; (4) a second legal malpractice
lawsuit initiated in Allegheny County
in September 2005 and related
litigation there from 2005 to 2008;
(5) the revocation of [Muhammad's]
car insurance and related litigation
from 2007 to 2008; (6) the forced
D. Ct. Doc. No. 88, 2–3 (internal citations omitted).
In particular, Muhammad alleged that most of the defendants,
including the Allegheny County Court of Common Pleas,
the Pennsylvania Commonwealth Court, the Pennsylvania
Superior Court, and the Pennsylvania Supreme Court
(collectively, “the Pennsylvania court defendants”), violated
the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101, et seq., and the Rehabilitation Act (“RA”), 29
U.S.C. § § 791, et seq., by repeatedly failing to reasonably
accommodate his impaired vision at various stages during
his numerous state court lawsuits. 1 Muhammad asked the
courts to provide him with a device which could magnify and
project small text. According to his complaint, Muhammad
was unable to meaningfully participate in his Pennsylvania
state court hearings or review records at the courthouses
because, with only a few exceptions, he was not afforded
equipment that would allow him to read documents relevant
to his case.
1
Muhammad's complaint and his various other filings are
riddled with invectives, and he accuses all defendants
of being racist, corrupt, asinine, anti-Islamic, and
prejudiced against the disabled.
Because Muhammad was proceeding in forma pauperis,
Judge Padova screened *761 his complaint for legal
sufficiency pursuant to 28 U.S.C. § 1915(e), and concluded
that Muhammad's ADA and RA claims against the four
Pennsylvania state court defendants sufficiently stated claims
upon which relief could be granted. Muhammad's ADA and
RA claims against the Pennsylvania state court defendants
were then transferred to the United States District Court
for the Western District of Pennsylvania, where venue was
proper. 2
2
The Eastern District then dismissed all other claims
against the remaining defendants, save for Muhammad's
ADA and RA claims against the Pennsylvania
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2
Muhammad v. Court of Common Pleas of Allegheny County, Pa., 483 Fed.Appx. 759...
Department of Insurance. Thereafter, the Pennsylvania
Department of Insurance filed a motion for summary
judgment, which the District Court granted. See E.D.
Pa. Civ. No. 08–cv–03616 (order entered December 13,
2010). Muhammad appealed that decision, but his appeal
was dismissed for failure to file a brief. See C.A. No. 11–
1075 (order entered April 27, 2011).
**2 Upon transfer to the Western District, the Pennsylvania
court defendants filed a motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and (6). The Magistrate
Judge prepared a report and recommendation concluding
that all of Muhammad's claims based on conduct occurring
before July 30, 2006, i.e., more than two years before he
filed his complaint, were time-barred, and that he had not
demonstrated a series of continuing violations that would
operate to toll the statute of limitations. The report and
recommendation further stated that, notwithstanding Judge
Padova's earlier analysis, Muhammad's complaint failed to
state a claim upon which relief could be granted. The District
Court agreed, adopted the Magistrate Judge's report and
recommendation, and granted the motion to dismiss over
Muhammad's objections. Muhammad then timely filed a
notice of appeal.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
exercise plenary review over the District Court's decision
to dismiss Muhammad's complaint. See Dique v. N.J. State
Police, 603 F.3d 181, 188 (3d Cir.2010). “In deciding
a motion to dismiss, all well-pleaded allegations of the
complaint must be taken as true and interpreted in the light
most favorable to the plaintiffs, and all inferences must be
drawn in favor of them.” McTernan v. City of York, 577 F.3d
521, 526 (3d Cir.2009) (internal citation and quotation marks
omitted). To withstand a Rule 12(b)(6) 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, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
At the outset, we note that, in his brief, Muhammad
challenges a number of orders issued by Judge Padova while
his complaint was before the Eastern District. Muhammad
had the opportunity to challenge those decisions in his appeal
at C.A. No. 11–1075, but he failed to pursue that appeal. He
may not now take a second bite at that apple.
Turning to the District Court's decision, the District Court
first concluded that all of Muhammad's claims arising from
conduct occurring before July 30, 2006, were time-barred.
We agree. In § 1983 cases, federal courts apply the state
personal injury statute of limitations, which is two years in
Pennsylvania. See Smith v. Holtz, 87 F.3d 108, 111 & n. 2;
42 Pa. Cons.Stat. Ann. § 5524 (West 2004). “A [§ ] 1983
cause of action accrues when the plaintiff knew or should
have known of the injury upon which its action is based.”
*762 Sameric Corp. of Del. v. City of Phila., 142 F.3d 582,
599 (3d Cir.1998). The determination of the time at which a
claim accrues is an objective inquiry; the relevant question
is what a reasonable person should have known. See Barren
v. United States, 839 F.2d 987, 990 (3d Cir.1988). As a
general matter, a cause of action accrues at the time of the
last event necessary to complete the tort, usually at the time
the plaintiff suffers an injury. See United States v. Kubrick,
444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).
However, the “continuing violations doctrine” constitutes an
“equitable exception to the timely filing requirement.” West
v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Under this
doctrine, “when a defendant's conduct is part of a continuing
practice, an action is timely so long as the last act evidencing
the continuing practice falls within the limitations period; in
such an instance, the court will grant relief for the earlier
related acts that would otherwise be time barred.” Brenner v.
Local 514, United Bhd. of Carpenters and Joiners of Am., 927
F.2d 1283, 1295 (3d Cir.1991). To benefit from the doctrine,
a plaintiff must establish that the defendant's conduct is “more
than the occurrence of isolated or sporadic acts,” West, 45
F.3d at 755, and the doctrine “does not apply when plaintiffs
are aware of the injury at the time it occurred.” Morganroth
& Morganroth v. Norris, McLaughlin & Marcus, P.C., 331
F.3d 406, 417 n. 6 (3d Cir.2003).
**3 [1] In this case, the District Court noted that
Muhammad filed his complaint on July 30, 2008, and
concluded that the statute of limitations barred his claims
related to conduct occurring before July 30, 2006. However,
Muhammad argued that the Pennsylvania court defendants'
repeated denials of accommodations amounted to a series
of continuing violations bringing all such conduct within
the limitations period. We agree with the District Court, as
Muhammad's allegations make clear that he was aware at
the time that each of his requests for an accommodation
was denied—beginning as early as 2004—that the absence
of accommodations would adversely affect his ability to
represent himself. The District Court correctly reasoned
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Muhammad v. Court of Common Pleas of Allegheny County, Pa., 483 Fed.Appx. 759...
that “[e]ach refusal to provide [Muhammad] with the
accommodations to which he claims entitlement was a
complete and independent act,” D. Ct. Doc. No. 101, 12,
and concluded that the continuing violations doctrine did not
apply because Muhammad should have been aware of each
act's negative impact at the time it occurred.
[2] We disagree, however, with the District Court's decision
insofar as it dismissed Muhammad's ADA claims regarding
the defendants' purported failures to reasonably accommodate
him after July 30, 2006. Under Title II of the ADA, “no
qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. To establish a violation
of Title II of the ADA, a plaintiff must allege that: (1) he
is a qualified individual with a disability; (2) he was either
excluded from participation in or denied the benefits of some
public entity's services, programs, or activities; and (3) such
exclusion, denial of benefits, or discrimination was by reason
of his disability. See id.; Robertson v. Las Animas Cnty.
Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir.2007). The
requirements for a claim under § 504 of the Rehabilitation
Act, 29 U.S.C. § 794, are the same as those under the
ADA, see Helen L. v. DiDario, 46 F.3d 325, 330 n. 7 (3d
Cir.1995), with the additional requirement that a plaintiff
alleging a violation of the *763 RA demonstrate that the
violation was committed by a program or activity receiving
“Federal financial assistance.” 3 § 794(a). Further, a plaintiff
can assert a failure to accommodate as an independent basis
for liability under the ADA and RA. See Wis. Cmty. Servs.,
Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir.2006)
(en banc). To make out such a claim, a plaintiff must
show that the accommodation he seeks is reasonable, see
Oconomowoc Residential Programs v. City of Milwaukee,
300 F.3d 775, 783 (7th Cir.2002), i.e., that it is “necessary to
avoid discrimination on the basis of disability.” 28 C.F.R. §
35.130(b)(7).
3
Although we disagree with the District Court's analysis
of Muhammad's ADA claims, the District Court properly
dismissed Muhammad's RA claims, as he failed to allege
any facts showing that the Pennsylvania court defendants
receive federal funding.
With regard to the first element under § 12132, the District
Court assumed that Muhammad is a qualified individual
with a disability, based on his averment that he suffers from
impaired vision as a complication of his diabetes, though the
District Court expressed some skepticism about the severity
of his impairment. Regardless of the District Court's concerns,
viewing Muhammad's complaint in the light most favorable
to him, he alleged sufficient facts to support his claim that
his vision is impaired to the extent that he cannot read small
text, which appears to satisfy the requirement of the ADA
that he be a qualified individual with a disability. See 28
C.F.R. § 35.104 (defining a disability as, inter alia, visual
impairments).
**4 Muhammad was next required to demonstrate that
he was excluded from the benefits of some public entity's
services, programs, or activities. The District Court's analysis
with respect to this prong is flawed in several respects. First,
the District Court stated that Muhammad “failed to allege
facts establishing that litigation in the state courts constitutes
a program or activity within the meaning of the ADA.” D. Ct.
Doc. No. 101, 14. It is not clear what “facts” the District Court
expected Muhammad to allege in that regard, as courts have
recognized a due process right to meaningfully participate
in civil litigation, the violation of which is actionable under
the ADA. See, e.g., Lane v. Tenn., 315 F.3d 680, 682 (6th
Cir.2003) (“Among the rights protected by the Due Process
Clause of the Fourteenth Amendment is the right of access to
the courts.... Parties in civil litigation have [a] ... due process
right to be present in the courtroom and to meaningfully
participate in the process unless their exclusion furthers
important governmental interests.”), aff'd, 541 U.S. 509, 124
S.Ct. 1978, 158 L.Ed.2d 820 (2004).
Next, the District Court faulted Muhammad for “failing to
allege facts establishing that the absence of [the requested]
equipment was unreasonable in the circumstances, or that
it impaired his ability to litigate effectively.” The District
Court's analysis is problematic because Muhammad was not
required to make any showing that the denial of the requested
accommodations was unreasonable. Rather, he bore the initial
burden of demonstrating that his requested accommodations
were reasonable, i.e., necessary to permit his meaningful
participation; upon making such a showing, the burden
shifted to the defendants to demonstrate that the requested
accommodations were unreasonable. See Oconomowoc, 300
F.3d at 783 (citing Lapid–Laurel, L.L.C. v. Zoning Bd. of
Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 457 (3d
Cir.2002)).
The District Court's latter point—that Muhammad failed to
allege sufficient facts showing how he was excluded from
meaningful *764 participation—is only partially correct.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
4
Muhammad v. Court of Common Pleas of Allegheny County, Pa., 483 Fed.Appx. 759...
The District Court correctly pointed out that Muhammad
offered no facts to support his contention that he was
not able to meaningfully participate in certain motions
hearings that did not appear to involve reading, such as
a motion to compel discovery, and that those allegations
were therefore insufficient under Iqbal. However, the District
Court's reasoning does not appear to hold water with regard to
some of Muhammad's other allegations, such as his inability
to review records on appeal so as to prepare arguments and
filings. Even if his pro se complaint did not spell out the
impact of each denial of an accommodation, the complaint
makes clear that, on at least some occasions, Muhammad
was unable to participate in the manner a non-visually
impaired individual could because he was not provided with
an assistive device. 4
4
Relatedly, the District Court noted that Muhammad's
argument that his ability to litigate was impaired was
undercut by his statement that he has successfully
litigated on his own behalf for more than 20 years.
However, the District Court read his statement out of
context, as it was intended to show that Muhammad
has successfully litigated in other states' courts, where
he was provided assistance to compensate for his
visual impairment, in contrast to his experience in
Pennsylvania's courts, where his inability to receive
accommodations has purportedly stymied his ability to
litigate effectively. See D. Ct. Doc. No. 99, ¶¶ 3–4; D.
Ct. Doc. No. 103, 5.
The District Court also faulted Muhammad for failing to
“articulate any theory that would impose liability on the
Courts as institutional defendants.” D. Ct. Doc. No. 101,
16. However, the ADA imposes liability on any “public
entity,” § 12131, which is defined as “any State or local
government; [or] any department, agency, special purpose
district, or other instrumentality of a State or States or local
government....” § 12131(1). Thus, the plain language of the
ADA subjects state courts to liability for violations of the
statute. Accord Galloway v. Super. Ct. D.C., 816 F.Supp.
12, 19 (D.D.C.1993) (“The Superior Court and the District
End of Document
of Columbia are public entities within the meaning of the
[Americans with Disabilities] Act.”).
**5 Finally, the District Court determined that Muhammad's
complaint failed to include sufficient facts to demonstrate
that he was excluded from participating in his state court
proceedings “by reason of” his disability. A failure-toaccommodate claim differs from other ADA claims in
that the ADA does not require a failure-to-accommodate
plaintiff to show that his injury was the result of purposeful
discrimination. See Good Shepherd Manor Found., Inc. v.
City of Momence, 323 F.3d 557, 561–62 (7th Cir.2003).
Rather, the ADA's “by reason of” language requires a
showing of causation: the plaintiff must demonstrate that, but
for the failure to accommodate, he would not be deprived of
the benefit he seeks. See id. In this case, the District Court
concluded that because Muhammad failed to allege facts
showing that he was the victim of intentional discrimination,
he failed to state a claim upon which relief could be granted.
Because Muhammad was only required to allege that he
was unable to meaningfully participate in his cases because
he did not receive accommodations—a requirement that he
appears to have satisfied—the District Court's rationale and
conclusion appear incorrect.
In sum, although the District Court correctly concluded that
a number of Muhammad's claims were time-barred or failed
to state a claim upon which relief could be granted, the
District Court erred in dismissing Muhammad's ADA claims
for purported *765 violations occurring on or after July 30,
2008.
Accordingly, we will affirm in part, vacate in part, and remand
for further proceedings. The District Court may wish, on
remand, to revisit Muhammad's request for appointment of
counsel.
All Citations
483 Fed.Appx. 759, 2012 WL 1681861
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
5
Wood v. Milyard, 414 Fed.Appx. 103 (2011)
Affirmed.
414 Fed.Appx. 103
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
Patrick WOOD, Plaintiff–Appellant,
v.
Kevin MILYARD, Assistant/Associate Warden;
Rebecca Rodenbeck, Administrative Head; Lt.
Thomas Beneze, Intelligence Officer; Lt. Ken
Topliss, Hearing Officer; Olathe Murphy, Case
West Headnotes (2)
[1]
Sovereign immunity deprived federal district
court of subject matter jurisdiction over pro se
inmate's suit under § 1983 against Colorado
Department of Corrections against prison
officials in their official capacity. U.S.C.A.
Const.Amend. 11; 42 U.S.C.A. § 1983.
6 Cases that cite this headnote
[2]
Manager; Randy Foshee, Associate Warden;
Major Linda Maifeld, Administrative Head or
Designee; Custody/Control Manager; Major Terry
Bartruff, Administrative Manager; Lieutenant
Robert Fazzino, Disciplinary Officer or Shift
Commander; Colorado Department of Corrections;
Colorado Territorial Correctional Facility; Sterling
Correctional Facility, Defendants–Appellees.
No. 10–1169.
|
Federal Courts
Prisons and jails
Limitation of Actions
Liabilities Created by Statute
Colorado inmate's cause of action under §
1983 against various Department of Corrections
officials based on alleged civil rights violations
accrued, and two-year limitations period began
to run on date of last alleged constitutional
violation. 42 U.S.C.A. § 1983.
3 Cases that cite this headnote
Jan. 13, 2011.
Synopsis
Background: Colorado inmate brought action under §
1983 against various officials of Colorado Department of
Corrections. The United States District Court for the District
of Colorado, Wiley Y. Daniel, Chief District Judge, dismissed
complaint with prejudice, 2010 WL 1235660, and inmate
appealed.
Attorneys and Law Firms
*104 Patrick Wood, Sterling, CO, pro se.
Chris Alber, Attorney General for the State of Colorado,
Denver, CO, for Defendants–Appellees.
Before KELLY, McKAY, and LUCERO, Circuit Judges. *
Holdings: The Court of Appeals, Paul J. Kelly, Jr., Circuit
Judge, held that:
[1] sovereign immunity deprived federal district court of
subject matter jurisdiction over pro se inmate's suit under §
1983, and
*
After examining the briefs and the appellate record, this
three-judge panel has determined unanimously that oral
argument would not be of material assistance in the
determination of this appeal. See Fed. R.App. P. 34(a);
10th Cir. R. 34.1(G). The cause is therefore ordered
submitted without oral argument.
[2] action was barred by two-year limitations period.
ORDER AND JUDGMENT **
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Wood v. Milyard, 414 Fed.Appx. 103 (2011)
**
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R.App. P. 32.1 and
10th Cir. R. 32.1.
PAUL KELLY, JR., Circuit Judge.
**1 Plaintiff–Appellant Patrick Wood, an inmate appearing
pro se, appeals from the district court's dismissal of his civil
rights complaint and action with prejudice. The complaint,
brought under 42 U.S.C. § 1983, alleges that various
Defendants, including several employees of the Colorado
Department of Corrections (“CDOC”) and the CDOC itself,
violated Mr. Wood's constitutional rights. 1 R. 8. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Amendment immunity and because all other claims were
barred by the applicable two-year statute of limitations. Wood
v. Milyard, 2010 WL 1235653, at *5–9 (D.Colo. Jan. 6,
2010). Over Plaintiff's objections, the district court adopted
the recommendation and dismissed the complaint and action
for substantially the same reasons. Wood v. Milyard, 2010
WL 1235660, *2–4 (D.Colo. Mar. 19, 2010).
We review de novo the district court's decision to dismiss the
complaint. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th
Cir.2008) (dismissals under Rule 12(b)(1)); *105 United
States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d
1163, 1167 (10th Cir.2010) (dismissals under Rule 12(b)(6)).
Discussion
Background
The parties are familiar with the facts so we need not
restate them here. Suffice it to say that Mr. Wood was
convicted of fraud in a prison disciplinary proceeding in
connection with the validity of a marriage certificate. 1 R. He
successfully appealed to the Colorado Court of Appeals, and
upon remand, he was found not guilty. Id. 7–8. He sought
reimbursement of fees and costs and restoration of privileges
lost. Id. 8. The trial court ordered the warden to comply with
an administrative regulation concerning restoration, and Mr.
Wood was awarded some fees and costs, though not all he
requested. Id. 8, 34–38.
On April 8, 2009, Mr. Wood filed his complaint against
the CDOC and various employees of the CDOC. Id. 4.
He contends that various Defendants violated his right to
due process and equal protection and to be free from
harassment (retaliation). Id. 8–12. The complaint did not
specify whether the individual Defendants were sued in their
official or individual capacities. Id. 4. Mr. Wood sought
monetary damages, reimbursement for various fees and costs,
reinstatement of privileges in accordance with Colorado
administrative regulation and the Colorado Court of Appeals
decision, and “any other relief allowable under law.” Id. 13.
The latest of the allegedly retaliatory actions identified in the
complaint occurred on January 20, 2006. Id. 9.
The magistrate judge recommended that the complaint be
dismissed because claims against the CDOC and individual
Defendants in their official capacities are barred by Eleventh
A. Sovereign Immunity
[1] The Eleventh Amendment, and the concept of sovereign
immunity it embodies, bars suits against states absent an
express and unambiguous waiver or abrogation by Congress.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 662–63, 94
S.Ct. 1347, 39 L.Ed.2d 662 (1974). State sovereign immunity
is more than immunity from liability—it actually deprives
federal courts of subject-matter jurisdiction. Id. at 678, 94
S.Ct. 1347. The Eleventh Amendment does permit suits
for prospective injunctive relief against state officials for
violations of federal law, but not for retrospective relief such
as money damages. Frew ex rel. Frew v. Hawkins, 540 U.S.
431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).
**2 Sovereign immunity is not confined to suits in which
the State is named as defendant, Edelman, 415 U.S. at 663,
94 S.Ct. 1347; state agencies partake in the State's immunity
if they are “arms of the state,” Ambus v. Granite Bd. of
Educ., 995 F.2d 992, 994 (10th Cir.1993) (en banc) (internal
quotation marks and citation omitted). The CDOC is such
an agency. See Griess v. Colorado, 841 F.2d 1042, 1044–
45 (10th Cir.1988). Sovereign immunity also extends to state
officials sued in their official capacities for retrospective
relief. Edelman, 415 U.S. at 664–67, 94 S.Ct. 1347.
Here, Plaintiff brought suit against the CDOC itself, as well as
several state officials. 1 R. 4. The complaint does not identify
whether the individual Defendants are sued in their official or
individual capacities, and it seeks retrospective relief in the
form of damages; any prospective relief sought appears to be
based upon state law (state administrative regulations and a
Colorado Court of Appeals decision) rather than federal. 1
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Wood v. Milyard, 414 Fed.Appx. 103 (2011)
doctrine does not apply to § 1983 suits. Aplt. Br. 9–10. These
arguments are unavailing.
R. 4, 13. § 1983 does not abrogate state sovereign immunity
—indeed, states are not even “persons” within the meaning
of § 1983, Will v. Mich. Dep't of State Police, 491 U.S. 58,
71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and Plaintiff
does not argue that Colorado has consented to this suit.
Therefore, Colorado's sovereign immunity deprives us of
subject-matter jurisdiction over the claims against the CDOC
and the official-capacity claims for retrospective relief against
the individual Defendants. To the extent that Plaintiff's claims
for prospective relief are premised on state law, they are not
cognizable under § 1983. Jones v. City and Cnty. of Denver,
Colo., 854 F.2d 1206, 1209 (10th Cir.1988).
B. Statute of Limitations
[2] The district court affirmed and adopted the magistrate
judge's recommendation that the remaining claims be
dismissed as time-barred under the applicable two-year
statute of limitations. See Milyard, 2010 WL 1235660, at
*3–4; Milyard, 2010 WL 1235653, at *6–7. In so doing, the
district court noted that “all of the specific, discrete actions
detailed in the Complaint” occurred before April 7, 2007
—more than two years before this suit was commenced.
Milyard, 2010 WL 1235660, at *3. The court noted that
because Plaintiff failed to allege any ongoing violations,
his claims would be time-barred even if the “continuing
violation” doctrine—under which a claim is not time-barred
if the plaintiff shows a series of related acts, one of which
occurred before the limitations period ran, or that the
defendant maintained a violative policy both during and after
the limitations period, see Davidson v. America Online, Inc.,
337 F.3d 1179, 1184 (10th Cir.2003) (citation *106 omitted)
—applied to suits brought under § 1983. Milyard, 2010 WL
1235660, at *3.
On appeal, Plaintiff argues that the district court made
two errors: (1) in holding that he failed to allege ongoing
violations, and (2) in implying that the continuing violation
End of Document
**3 Contrary to Plaintiffs' assertions, the complaint does
not allege an ongoing conspiracy or actions that constitute
continuing constitutional violations. Rather, it identifies a
series of discrete actions on the part of each Defendant, the
latest of which occurred on January 20, 2006. R. 9. Therefore,
the district court was correct in holding that Plaintiff's cause
of action accrued upon the date of the last alleged violation—
in this case, January 20, 2006. Id. The suit was commenced
on April 8, 2009, more than two years after the cause of
action accrued. Because § 1983 claims brought in Colorado
are subject to a two-year statute of limitations, see Blake v.
Dickason, 997 F.2d 749, 750–51 (10th Cir.1993), Plaintiff's
claims are time-barred.
We do not reach the question of whether the continuing
violation doctrine applies to suits brought under § 1983.
However, even if it did, it would be of no help to Plaintiff
here: “a continuing violation claim fails if the plaintiff knew,
or through the exercise of reasonable diligence would have
known, [he] was being discriminated against at the time
the earlier events occurred.” Davidson, 337 F.3d at 1184
(internal quotation marks and citations omitted). Through
the exercise of reasonable diligence, Plaintiff would have
been aware at the outset that Defendants' actions were—
in his view—retaliatory. Therefore, even if the continuing
violation doctrine were to apply to § 1983 suits, it would not
be applicable in this case.
AFFIRMED. We GRANT leave to proceed IFP and remind
Mr. Wood that he is obligated to continue making partial
payments until the entire filing fee has been paid.
All Citations
414 Fed.Appx. 103, 2011 WL 103029
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Ruppert v. Aragon, 448 Fed.Appx. 862 (2012)
448 Fed.Appx. 862
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
James Kevin RUPPERT, Plaintiff–Appellant,
v.
Phil ARAGON, Captain, Guadalupe County
Correctional Facility, Defendant–Appellee,
and
Erasmo Bravo, Warden; J. Torello, Job Coordinator;
Rodgers, Ms., Lieutenant, Grievance Officer,
Disciplinary Officer; Justin Rodgers, Mr.,
Lieutenant, Grievance Officer; Disciplinary
Officer; Karen Jaramillo, Ms., Education Director;
designated staff for legal assistance, Defendants.
No. 11–2144.
|
Feb. 9, 2012.
Attorneys and Law Firms
James Kevin Ruppert, Santa Rosa, NM, pro se.
Patrick D. Allen, Esq., April D. White, Esq., Yenson, Lynn,
Allen & Wosick, P.C., Albuquerque, NM, for Defendant–
Appellee.
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit
Judges.
ORDER AND JUDGMENT *
*
The parties have waived oral argument. See Fed. R.App.
P. 34(f); 10th Cir. R. 34.1(G). This case is submitted for
decision on the briefs.
This order and judgment is an unpublished decision,
not binding precedent. 10th Cir. R. 32.1(A). Citation to
unpublished decisions is not prohibited. Fed. R.App.
32.1. It is appropriate as it relates to law of the case,
issue preclusion and claim preclusion. Unpublished
decisions may also be cited for their persuasive value.
10th Cir. R. 32.1(A). Citation to an order and judgment
must be accompanied by an appropriate parenthetical
notation-(unpublished). Id.
TERRENCE L. O'BRIEN, Circuit Judge.
**1 James Ruppert appeals from a summary judgment
in favor of Phil Aragon, a captain at the New Mexico
Department of Corrections prison where Ruppert is
incarcerated. Ruppert claims Aragon threatened to punish
him for filing a lawsuit, a violation of his First
Amendment rights to file grievances. Following review of the
administrative record, the district court concluded Ruppert
had not exhausted available remedies as required by the
Prison Litigation Reform Act (PLRA) and dismissed the suit
without prejudice. We affirm.
Ruppert had initially filed a more extensive suit, with a long
list of defendants and constitutional claims. After screening
under 28 U.S.C. § 1915, however, he was left with only his
retaliation claim, which had earlier been dismissed without
prejudice, thereby permitting him to further develop his
pleadings. Ruppert filed an amended complaint alleging,
as relevant here, that Aragon threatened to place him in
administrative segregation if he were to file a lawsuit
against prison officials. Aragon was served with process and
ordered to submit a Martinez report documenting Ruppert's
exhaustion efforts. See *863 Martinez v. Aaron, 570 F.2d
317, 319 (10th Cir.1978). He did so, with a request that
the report be treated as a motion for summary judgment on
exhaustion grounds.
After reviewing the Martinez report and Ruppert's response,
the magistrate judge recommended summary judgment be
entered for Aragon because Ruppert had failed to exhaust
his administrative remedies. The magistrate identified two
separate claims in Ruppert's amended complaint, one arising
from an incident in 2008, a second from an incident in 2009.
The first claim was a clear loser: Ruppert failed to file a
grievance, foreclosing any possibility of judicial relief. The
second claim presented a closer issue but in the end fared
no better because, contrary to the PLRA's exhaustion rules,
Ruppert brought his federal suit before the prison had finished
its review of the 2009 incident. It mattered not, the magistrate
explained, that the administrative review process had been
completed by the time the case was ripe for decision. What
mattered was that the process was incomplete when Ruppert
filed suit. Since the PLRA makes exhaustion a precondition to
filing a suit, an action brought before administrative remedies
are exhausted must be dismissed without regard to concern
for judicial efficiency. See 42 U.S.C. § 1997e(a); Jernigan
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Ruppert v. Aragon, 448 Fed.Appx. 862 (2012)
v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002); Perez v.
Wisconsin Dep't of Corrections, 182 F.3d 532, 534–35 (7th
Cir.1999); Alexander v. Hawk, 159 F.3d 1321, 1327–28 (11th
Cir.1998); see also McNeil v. United States, 508 U.S. 106,
113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (interpreting
similar exhaustion provision in the Federal Tort Claims Act);
Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir.1999).
Ruppert also sought leave to again amend his complaint to
add Eighth Amendment claims against several prison officials
based on an incident that occurred while the suit was pending
before the district court. Acknowledging that leave to amend
should be freely granted, the magistrate nonetheless denied
the request because the claim had arisen more than a year after
Ruppert filed his lawsuit and from events unrelated to those
described in the original complaint.
End of Document
**2 Over Ruppert's objection, the district court adopted
the magistrate's recommendation to deny leave to amend
the complaint and to dismiss his remaining claims without
prejudice. The court concluded the magistrate had properly
applied the exhaustion rules in § 1997e(a) and had not abused
his discretion in denying Ruppert an opportunity to add the
unrelated claims.
After reviewing the record, we conclude the district court's
decision was correct.
AFFIRMED.
All Citations
448 Fed.Appx. 862, 2012 WL 401524
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Blevins v. Wells, Not Reported in F.Supp.2d (2011)
2011 WL 1518656
2011 WL 1518656
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Terry BLEVINS, Plaintiff,
v.
Jeff WELLS, Defendant.
Civil Action No. 09–cv–01531–
WJM–KMT. | March 14, 2011.
Attorneys and Law Firms
Terry Blevins, Grand Junction, CO, pro se.
Plaintiff that he would switch the handcuffs to Plaintiff's
front side when they reached the car. (Id .) Plaintiff then
advised Defendant Wells that “unfortunately [Defendant
Wells] would be added to plaintiff's lawsuit.”(Id.) Plaintiff
alleges when Plaintiff and Defendant Wells reached the car,
Defendant Wells did not switch the cuffs, “since [Plaintiff]
was going to sue him why not go all the way.”(Id.) Plaintiff
alleges the failure to change the position of the handcuffs
inflicted injury to Plaintiff. (Id. at 10, 11.)Plaintiff alleges
Defendant Wells subjected Plaintiff to needless pain and
cruel and usual punishment. (Id. at 10.)Plaintiff also contends
Defendant Wells failed to change the position of the cuffs in
retaliation for Plaintiff's statement that Plaintiff was going to
sue Defendant Wells. (Id. at 11.)Plaintiff seeks compensatory
damages and punitive damages. (Id. at 15.)
II. LEGAL STANDARDS
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, United States Magistrate Judge.
*1 This case comes before the court on “Defendant's Motion
for Summary Judgment” (Doc. No. 64 [Mot.], filed October
18, 2010). Plaintiff filed his response on November 5, 2010
(Doc. No. 66 [Resp.] ), and Defendant filed his reply on
November 18, 2010 (Doc. No. 67 [Reply].) The motion is ripe
for the court's ruling and recommendation.
I. STATEMENT OF THE CASE
The following facts are taken from Plaintiff's Amended
Prisoner Complaint (Am.Compl.) and the parties'
submissions with respect to this Recommendation. Plaintiff
alleges claims of Cruel and Unusual Punishment and
Retaliation against Defendant Wells, a Parole Officer
employed by the Colorado Department of Corrections
(CDOC). 1 (See Am. Compl. at 10–11.)
1
The remaining claims and defendants were dismissed by
Senior Judge Zita L. Weinshienk on October 20, 2009.
(See Doc. No. 12.)
Plaintiff states on March 12, 2009, Defendant Wells arrested
him for a parole violation. (Id. at 5.) Plaintiff alleges while
he was being escorted in handcuffs from the Veterans
Administration Medical Center, where he was being treated
at the time, Plaintiff advised Defendant Wells that he had
previously obtained a shoulder injury from being placed in
handcuffs. (Id.) According to Plaintiff, Defendant Wells told
A. Pro Se Plaintiff
Plaintiff is proceeding pro se.The court, therefore, “review[s]
his pleadings and other papers liberally and hold[s]
them to a less stringent standard than those drafted by
attorneys.”Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir.2007) (citations omitted).See also Haines v. Kerner,
404 U.S. 519, 520–21 (1972) (holding allegations of a
pro se complaint “to less stringent standards than formal
pleadings drafted by lawyers”). However, a pro se litigant's
“conclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be
based.”Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
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 also Whitney v. New Mexico,
113 F.3d 1170, 1173–74 (10th Cir.1997) (court may not
“supply additional factual allegations to round out a plaintiff's
complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir.1991) (the court may not “construct arguments
or theories for the plaintiff in the absence of any discussion
of those issues”). The plaintiff's pro se status does not entitle
him to application of different rules. See Montoya v. Chao,
296 F.3d 952, 957 (10th Cir.2002).
B. Summary Judgment Standard
*2 Summary judgment is appropriate if “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Blevins v. Wells, Not Reported in F.Supp.2d (2011)
2011 WL 1518656
and that the movant is entitled to judgment as a matter of
law.”Fed.R.Civ.P. 56(c). The moving party bears the initial
burden of showing an absence of evidence to support the
nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).“Once the moving party meets this burden,
the burden shifts to the nonmoving party to demonstrate a
genuine issue for trial on a material matter.”Concrete Works
of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir.1994) (citing Celotex, 477 U.S. at 325). The
nonmoving party may not rest solely on the allegations in
the pleadings, but must instead designate “specific facts
showing that there is a genuine issue for trial.”Celotex, 477
U.S. at 324;see alsoFed.R.Civ.P. 56(e)(2). A disputed fact is
“material” if it might affect the outcome of the suit under the
governing law; the dispute is “genuine” if the evidence is such
that it might lead a reasonable jury to return a verdict for the
nonmoving party. Allen v. Muskogee, Okla., 119 F.3d 837,
839 (10th Cir.1997) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
When ruling on a motion for summary judgment, a court
may consider only admissible evidence. See Johnson v.
Weld Cnty., Colo., 594 F.3d 1202, 1209–10 (10th Cir.2010).
The factual record and reasonable inferences therefrom are
viewed in the light most favorable to the party opposing
summary judgment.Concrete Works, 36 F.3d at 1517.At the
summary judgment stage of litigation, a plaintiff's version of
the facts must find support in the record. Thomson v. Salt Lake
Cnty., 584 F.3d 1304, 1312 (10th Cir.2009).“When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”Scott
v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at
1312.
III. ANALYSIS
A. Failure to Exhaust Administrative Remedies
Defendant moves for summary judgment based upon
Plaintiff's failure to exhaust his administrative remedies, as
required by the Prison Litigation Reform Act (PLRA), Title
42 U.S.C. § 1997e(a). (Mot. at 12–13.) Prior to filing this
civil action, Plaintiff was required to exhaust administrative
remedies pursuant to PLRA. Booth v. Churner, 532 U.S. 731,
741 (2001).Section 1997e(a) provides: “No action shall be
brought with respect to prison conditions under § 1983 of
this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”In
Jones v. Bock, 549 U.S. 199 (2007), the United States
Supreme Court that failure to exhaust administrative remedies
is an affirmative defense under the PLRA, and prison inmates
are not required to plead or demonstrate exhaustion in their
complaints. Id., 199 U.S. at 216.
*3 In his Complaint, Plaintiff acknowledges that he has not
exhausted his available administrative remedies. (Compl. at
14.) However, Plaintiff argues that the “[d]efense does not
state where such a grievance should have been filed.”(Resp.
at 3.) Plaintiff also argues that the he filed this lawsuit while
he “was a parolee on the streets.”(Id.) However, the Court's
docket shows that Plaintiff filed his “Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915” on
June 16, 2009, and the court docketed Plaintiff's original
Prisoner Complaint on June 30, 2009, while Plaintiff was in
the custody of the Limon Correctional Facility (LCF) of the
CDOC. (Doc. Nos.1, 3.) Moreover, the Statement of Account
Activity attached to Plaintiff's motion to proceed under § 1915
reflects that Plaintiff had been in the custody of the CDOC
since at least May 4, 2009. (Id. at 3.)
Defendant submits with his motion the Affidavit of Tasha
Dobbs, another CDOC Parole Officer. (Mot., Ex. A–2
[Dobbs Aff.], ¶ 2.) Ms. Dobbs explains that the Regulation
provides that a parolee may file a grievance with his parole
officer under the CDOC's Administrative Regulation (AR)
850–04. (Id. at ¶ 8.) The Regulation also states that the
grievance procedure is available to offenders sentenced to
the CDOC, including offenders who have been released to
parole, community, or ISP supervision. AR 850–04 at Section
IV.A.2. Therefore, AR 850–04 applies to Plaintiff whether he
was a parolee or back in CDOC custody.
The AR also states that, “[u]pon entry in the Department of
Corrections, each offender shall receive written notification
and oral explanation of the grievance procedure.”AR 850–
04, § IV.A.1. 2 The inmate must submit any grievance on
a CDOC grievance form and must follow the three-step
procedure outlined in the Regulation. See AR 850–04. The
Regulation provides details on grievance-filing procedures.
Id. Plaintiff does not argue that he did not receive the AR
upon his entry into the CDOC or that he was unaware of the
requirement for exhaustion of his administrative remedies.
Moreover, this court notes that Plaintiff is a sophisticated
plaintiff who has filed six civil cases in this Court, all while
he was an inmate with the CDOC.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Blevins v. Wells, Not Reported in F.Supp.2d (2011)
2011 WL 1518656
2
Here, the court takes judicial notice of AR 850–04, as that
regulation is found in its entirety on the CDOC website
at http:// www.doc.state.co.us/index.html.
This court determines there is no genuine issue of material
fact as to Plaintiff's failure to comply with his obligations
under the PLRA to exhaust his administrative remedies as set
forth in the CDOC's administrative remedies under AR 850–
04, and summary judgment is properly granted in favor of
Defendant.
Because the issue of Plaintiff's failure to exhaust his
administrative remedies is clear, this court need not address
Defendant's remaining arguments for summary judgment.
WHEREFORE, for the foregoing reasons, this court
respectfully
RECOMMENDS that “Defendant's Motion for Summary
Judgment” (Doc. No. 64) be GRANTED, for Plaintiff's
failure to exhaust his administrative remedies.
ADVISEMENT TO THE PARTIES
*4 Within fourteen days after service of a copy of the
Recommendation, any party may serve and file written
objections to the Magistrate Judge's proposed findings 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); 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
End of Document
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. One Parcel of Real Prop. Known As 2121 East 30th
Street, Tulsa, Okla., 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 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 and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579–
80 (10th Cir.1999) (a district court's decision to review a
magistrate judge's recommendation de novo despite the lack
of an objection does not preclude application of the “firm
waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059–
60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal
Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing
to object to certain portions of the magistrate judge's order,
cross-claimant had waived its right to appeal those portions
of the ruling); Ayala v. United States, 980 F.2d 1342, 1352
(10th Cir.1992) (by their failure to file objections, plaintiffs
waived their right to appeal the magistrate judge's ruling); but
see, Morales–Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir.2005) (firm waiver rule does not apply when the interests
of justice require review).
All Citations
Not Reported in F.Supp.2d, 2011 WL 1518656
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Simmons v. Stus, 401 Fed.Appx. 380 (2010)
prisoner was unaware of grievance procedure,
where there was grievance procedure in place
at jail, and prisoner did not file administrative
grievance concerning alleged excessive-force
incident. U.S.C.A. Const.Amend. 8; 42 U.S.C.A.
§ 1983; Prison Litigation Reform Act of 1995, §
101(a), 42 U.S.C.A. § 1997e(a).
401 Fed.Appx. 380
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
James SIMMONS, Plaintiff–Appellant,
v.
Jon STUS, Deputy, Crawford County
Sheriff Department; Donny (LNU), Deputy,
Crawford County Sheriff Department;
Troy (LNU), Deputy, Crawford County
Sheriff Department, Defendants–Appellees.
No. 10–3070.
|
Attorneys and Law Firms
*380 James Simmons, Hutchinson, KS, pro se.
Terelle Ashley Mock, J. Steven Pigg, Fisher, Patterson,
Sayler & Smith, LLP, Topeka, KS, for Defendants–
Appellees.
Before TACHA, ANDERSON, and KELLY, Circuit Judges.
Nov. 9, 2010.
Synopsis
Background: State prisoner brought § 1983 action against
jailers, alleging that jailers used excessive force when
prisoner was beaten by three correctional officers. The United
States District Court for the District of Kansas, Crow, Senior
District Judge, dismissed prisoner's claim. Prisoner appealed.
Holding: The Court of Appeals, Deanell Reece Tacha,
Circuit Judge, held that prisoner failed to exhaust
administrative remedies.
ORDER AND JUDGMENT *
*
After examining the briefs and appellate record, this
panel has determined unanimously that oral argument
would not materially assist the determination of this
appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral
argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed.
R.App. P. 32.1 and 10th Cir. R. 32.1.
DEANELL REECE TACHA, Circuit Judge.
Affirmed.
West Headnotes (1)
[1]
3 Cases that cite this headnote
Civil Rights
Criminal law enforcement; prisons
Kansas state prisoner failed to exhaust
administrative remedies with respect to his claim
for excessive force, as required under Prison
Litigation Reform Act (PLRA), before bringing
§ 1983 action against jailers, even though
**1 James Simmons, a Kansas prisoner proceeding pro
se and in forma pauperis, appeals *381 the district court's
dismissal of his excessive-force claim, brought pursuant to 42
U.S.C. § 1983, for failure to exhaust available administrative
remedies. We take jurisdiction under 28 U.S.C. § 1291 and
affirm.
Background
Mr. Simmons filed suit complaining about the conditions
of his confinement at the Crawford County Jail in Girard,
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Simmons v. Stus, 401 Fed.Appx. 380 (2010)
Kansas, from August 7, 2006 to May 22, 2007. The district
court dismissed all of his claims for failure to state a
constitutional violation except the excessive-force claim. 1
Mr. Simmons alleged that jailers used excessive force on
December 19, 2006, when he was beaten by three correctional
officers. The district court dismissed the claim for failure to
exhaust administrative remedies.
1
Mr. Simmons has waived his claims other than the
excessive-force claim by failing to argue them on appeal.
See Ruiz v. McDonnell, 299 F.3d 1173, 1182 n. 4 (10th
Cir.2002) (holding issues not argued to appellate court
are deemed waived).
Mr. Simmons concedes that he did not file an administrative
grievance concerning the alleged excessive-force incident. He
further concedes that there was a grievance procedure in place
at the jail. Instead, he argues that he was unaware of the
grievance procedure. 2
2
Mr. Simmons also asserts that the district court erred in
stating that (1) he was assigned to a one-man holding
cell for protection; (2) he claimed the beating occurred in
his cell, rather than outside it; and (3) he had submitted
grievances prior to the alleged beating. These disputes
are not relevant to the issue of whether he exhausted
administrative remedies relative to the alleged beating.
Cir.2002). Because Mr. Simmons is proceeding pro se, we
construe his filings liberally. See Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per
curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1
(10th Cir.2007).
“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910,
166 L.Ed.2d 798 (2007). In an unpublished decision, this
court addressed whether a prisoner may avoid the exhaustion
requirement if he was unaware of the jail's grievance
procedures. Gonzales–Liranza v. Naranjo, 76 Fed.Appx. 270
(10th Cir.2003). Although Gonzales–Liranza is not binding
precedent, we agree with its reasoning, given its factual
similarity to this case. In each, the prisoner claimed he
had not been informed how to file a grievance or given an
inmate *382 handbook describing the procedure, and neither
claimed that the respective correctional facility “did anything
to frustrate or prevent him from utilizing [the grievance]
procedures,” id. at 273. Accordingly, we hold that “even
accepting plaintiff's allegation that he was unaware of the
grievance procedures, there is no authority for waiving or
excusing compliance with PLRA's exhaustion requirement.”
Id.; see also Griffin v. Romero, 399 Fed.Appx. 349 at 351,
2010 WL 4069460, at *2 (10th Cir.2010) (unpublished)
(affirming dismissal for failure to exhaust administrative
remedies even though prisoner claimed that jail officers did
not make grievance process available to him).
Analysis
The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C.
§ 1997e(a), provides that a prisoner confined in any jail,
prison or correctional facility may not bring any action
under any federal law regarding prison conditions “until such
administrative remedies as are available are exhausted.” This
“exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002). “We review de novo
the district court's finding of failure to exhaust administrative
remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
End of Document
Conclusion
**2 The district court granted Mr. Simmons leave to proceed
on appeal in forma pauperis. He is reminded that he must
continue to make partial payments until the entire balance of
the filing fee is paid. The judgment of the district court is
AFFIRMED.
All Citations
401 Fed.Appx. 380, 2010 WL 4457934
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Gonzales-Liranza v. Naranjo, 76 Fed.Appx. 270 (2003)
grievance process available, prisoner admitted
that he did not exhaust that procedure, and
prison did nothing to frustrate or prevent
prisoner from utilizing procedure. Civil Rights
of Institutionalized Persons Act, § 7(a), 42
U.S.C.A. § 1997e(a).
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by
Russell v. Unknown Cook County Sheriff's
Officers,
N.D.Ill.,
December 27, 2004
76 Fed.Appx. 270
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
Francisco GONZALESLIRANZA, Plaintiff-Appellant,
v.
Sergeant Johnny NARANJO, Defendant-Appellee.
No. 02-2110.
|
Attorneys and Law Firms
*270 Jose R. Coronado, Las Cruces, NM, for PlaintiffAppellant.
Jeffrey L. Baker, Albuquerque, NM, for Defendant-Appellee.
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit
Judge, and TYMKOVICH, Circuit Judge.
Oct. 2, 2003.
State prisoner filed pro se § 1983 action against correctional
officer and others, alleging that officer failed to take prompt
measures to ensure his safety. The United States District
Court for the District of New Mexico granted summary
judgment in favor of officer. Prisoner appealed. The Court of
Appeals, 211 F.3d 1278, 2000 WL 488476, Seymour, Circuit
Judge, reversed and remanded. On remand, the District Court
dismissed for failure to exhaust administrative remedies.
Prisoner again appealed. The Court of Appeals, Tymkovich,
Circuit Judge, held that dismissal of action was warranted for
failure to exhaust administrative remedies.
Affirmed.
West Headnotes (1)
[1]
40 Cases that cite this headnote
Civil Rights
Criminal Law Enforcement; Prisons
Dismissal of pro se state prisoner's § 1983
action against correctional officer was warranted
for failure to exhaust administrative remedies,
as required by Prison Litigation Reform Act
(PLRA), even if prisoner was not informed of
prison's grievance process, where prison had
*271 ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors
the citation of orders and judgments; nevertheless, an
order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
TYMKOVICH, Circuit Judge.
**1 After examining the briefs and appellate record, this
panel has determined unanimously that oral argument would
not materially assist the determination of this appeal. See Fed.
R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Francisco Gonzales Liranza appeals the district
court's dismissal without prejudice of his 42 U.S.C. §
1983 civil rights complaint for failure to exhaust available
administrative remedies. We have jurisdiction pursuant to 28
U.S.C. § 1291, see Yousef v. Reno, 254 F.3d 1214, 1218-19
(10th Cir.2001), and we affirm.
Plaintiff, a New Mexico prisoner in the custody of the
Bernalillo County Detention Center (BCDC) at the time of
the incident in question, filed a pro se § 1983 complaint
in August 1998 against defendant Sergeant Johnny Naranjo,
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Gonzales-Liranza v. Naranjo, 76 Fed.Appx. 270 (2003)
a correctional officer at BCDC. 1 Plaintiff alleged that, in
August 1996, while he was a pre-trial detainee at BCDC,
plaintiff told Sgt. Naranjo he was having problems with
certain inmates and feared for his safety. He alleged that Sgt.
Naranjo failed to take prompt measures to ensure his safety
and, one hour later, he was severely beaten by these same
inmates, resulting in serious and permanent injuries.
1
Plaintiff named other defendants in his complaint, but
they were sua sponte dismissed by the district court, and
plaintiff has not challenged their dismissal.
Pursuant to the Prison Litigation Reform Act of 1995
(PLRA), prisoners bringing suit under § 1983 must first
exhaust available administrative remedies before seeking
relief in federal court. See 42 U.S.C. § 1997e(a) ( “No action
shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.”). This exhaustion requirement is mandatory.
Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002) ( “[a]ll ‘available’ remedies must now be
exhausted; those remedies need not meet federal standards,
nor must they be plain, speedy, and effective.” (quotation
omitted)).
Plaintiff acknowledged in his complaint that he had not
exhausted administrative remedies. In response to a question
on the complaint form asking whether he had sought informal
or formal relief from the appropriate administrative officials
regarding the acts complained of, plaintiff checked the box
marked “No.” R. Doc. 1, at 4. He also marked “No” in
response to a question asking whether he had exhausted
available administrative remedies. Id. at 5. Plaintiff stated in
his complaint, however, that, “[t]here are no administrative
remedies that Plaintiff is aware of ... [and] [p]laintiff was [not]
advised that he could file anything administratively for the
inactions that occurred.” Id.
Sergeant Naranjo filed a motion for summary judgment in
March 1999, seeking a dismissal of the complaint based on
plaintiff's failure to exhaust administrative remedies. In his
motion, Sgt. Naranjo presented evidence that BCDC had
a grievance procedure and policy in effect at the time of
the events in question. He attached a copy of the prison's
grievance *272 policy and an affidavit from a BCDC prison
official stating that the prison records indicated plaintiff had
not filed any form of grievance regarding the incident in
question.
**2 Before ruling on the exhaustion issue, however, the
district court requested defendant file a Martinez report
to investigate the incidents forming the basis of plaintiff's
complaint. See Martinez v. Aaron, 570 F.2d 317, 319
(10th Cir.1978) (holding that report may be necessary to
determine certain preliminary issues). After Sgt. Naranjo filed
a Martinez report, the district court dismissed the complaint,
ruling on the merits that the alleged conduct of Sgt. Naranjo
did not rise to the level of a constitutional violation. This
court reversed that dismissal on appeal, however, ruling that
plaintiff had been denied a proper opportunity to respond
to Sgt. Naranjo's motion for summary judgment and the
Martinez report. Gonzalez-Liranza v. Naranjo, No. 99 2302,
2000 WL 488476 (10th Cir. Apr. 26, 2000) (unpublished
disposition).
On remand, Sgt. Naranjo filed a motion to dismiss for failure
to exhaust the available prison administrative remedies. In
response, plaintiff, now represented by counsel, reasserted
his allegation in the complaint that he was unable to avail
himself of the prison grievance procedures because he was
never advised by BCDC that there were any such procedures.
Plaintiff did not dispute that the prison had a grievance policy,
but he attached his affidavit stating that when he was taken to
BCDC, he was never informed that the prison had a grievance
process nor was he given any written materials informing
him of his right to file a complaint or initiate a grievance
procedure. He also stated in his affidavit that he informed
a prison guard shortly after the incident in question that he
wished to file a complaint, and this official took notes and
said he would investigate the matter, but did not tell plaintiff
he had to fill out a complaint form.
After a request by the court for supplemental briefing, Sgt.
Naranjo presented evidence that BCDC provides an inmate
handbook, written in both English and Spanish, to all newly
admitted inmates during an admission orientation, that the
prison's grievance procedures are included in the handbook
and that the contents of the handbook are explained to
all inmates during the orientation. Sergeant Naranjo also
presented evidence that plaintiff had been housed in BCDC
on seven different occasions and would have received a copy
of the inmate handbook each time.
The district court ruled that plaintiff did not exhaust his
administrative remedies as required by § 1997e(a), but
because there was a factual dispute as to whether plaintiff was
aware of the available grievance procedures, it dismissed the
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Gonzales-Liranza v. Naranjo, 76 Fed.Appx. 270 (2003)
complaint without prejudice and ordered BCDC to provide
plaintiff with a copy of its grievance procedures.
On appeal, plaintiff contends the district court erred in
dismissing the complaint because there was a factual dispute
whether the prison had informed him of its grievance
procedures. “We review de novo a dismissal for failure to
exhaust administrative remedies.” Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir.2002).
**3 The district court correctly dismissed plaintiff's
complaint for failure to exhaust BCDC's grievance procedure.
The district court did not resolve any factual dispute between
the parties, and, as a matter of law, any factual dispute
between the parties as to whether or not plaintiff was ever
advised or informed of the prison's grievance procedures was
not relevant. This court has previously rejected a prisoner's
assertion that the government *273 should have advised
him of the need to follow prison administrative procedures.
Yousef, 254 F.3d at 1221 (rejecting argument as lacking
any authority). “The statutory exhaustion requirement of
§ 1997e(a) is mandatory, and the district court [is] not
authorized to dispense with it.” Beaudry v. Corr. Corp. of
Am., 331 F.3d 1164, 1167 n. 5 (10th Cir.2003). As the
Supreme Court has broadly stated: “[W]e stress the point ...
that we will not read futility or other exceptions into [PLRA's]
statutory exhaustion requirement [ ].” Booth v. Churner, 532
U.S. 731, 741, n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)
(emphasis supplied).
“Section 1997e(a) says nothing about a prisoner's subjective
beliefs, logical or otherwise, about the administrative
remedies that might be available to him. The statute's
requirements are clear: If administrative remedies are
available, the prisoner must exhaust them.” Chelette v.
End of Document
Harris, 229 F.3d 684, 688 (8th Cir.2000). “Congress intended
to save courts from spending countless hours, educating
themselves in every case, as to the vagaries of prison
administrative processes, state or federal” and “did not intend
for courts to expend scarce judicial resources examining
how and by whom a prison's grievance procedure was
implemented.” Concepcion v. Morton, 306 F.3d 1347, 1354
(3d Cir.2002) (quotation omitted).
It is undisputed that BCDC had a written grievance procedure
and it is undisputed that plaintiff did not exhaust that
procedure. Plaintiff does not allege that BCDC did anything
to frustrate or prevent him from utilizing those procedures.
See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.2003)
(holding district court erred in failing to consider prisoner's
claim that he was unable to file a grievance, and therefore
lacked available administrative remedies, because prison
officials refused to provide him with the necessary grievance
forms). Plaintiff's claim that he told a prison guard he wished
to file a complaint and was not told about the administrative
remedies is unavailing. Giving notice of his claims by means
other than the prison's available grievance process does not
satisfy PLRA's exhaustion requirement. See Jernigan, 304
F.3d at 1032.
Thus, even accepting plaintiff's allegation that he was
unaware of the grievance procedures, there is no authority
for waiving or excusing compliance with PLRA's exhaustion
requirement. Accordingly, the judgment of the district court
is AFFIRMED.
All Citations
76 Fed.Appx. 270, 2003 WL 22255886
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
3
Africa v. Dukes, Not Reported in F.Supp.2d (2012)
2012 WL 1313412
2012 WL 1313412
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Charles Sims AFRICA, Plaintiff
v.
Lt. DUKES, Defendant.
Civil No. 1:10–1838.
|
April 17, 2012.
Attorneys and Law Firms
Charles Sims Africa, Hunlock Creek, PA, pro se.
Travis S. Anderson, Chief Counsel's Office, Mechanicsburg,
PA, for Defendant.
MEMORANDUM
SYLVIA H. RAMBO, District Judge.
I. Background
*1 Before the court is a February 8, 2012, report of the
magistrate judge (Doc. 62) to whom this matter is referred in
which addresses the only remaining claim in the captioned
action—an Eighth Amendment failure to protect claim
against Defendant Dukes. Dukes filed a motion for summary
judgment. The report of the magistrate judge recommends
that the motion for summary judgment be granted on the
basis that Plaintiff failed to exhaust available administrative
remedies. Plaintiff has filed objections to the report and
recommendation, and claims that (1) there is an exception to
the DOC policy of exhaustion; and (2) the PLRA unfairly
imposes an unreasonable burden on a pro se litigant. Dukes
has filed a response to Plaintiff's objections and the matter is
ripe for disposition.
II. Discussion
Exhaustion of all available administrative remedies is a
mandatory prerequisite to filing prison conditions litigation
in a federal court. 42 U.S.C. § 1997e(a); Woodford v. Ngo,
548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
(Def.'s Response to Pltf.'s Objs., Doc. 72, at p. 4.) Defendant's
summary judgment motion is premised on Plaintiff's failure to
exhaust his administrative remedies through DC–ADM 804.
Plaintiff, however, claims there is an exception to DC–ADM
804. At section 1, paragraph 7 of that policy, appears the
following:
A grievance directly related to
a specific inmate misconduct
charge or a specific disciplinary
sanction
and/or
reasons
for
placement in administrative custody
will not be addressed through
the inmate Grievance process
and must be addressed through
department policy DC–ADM 801,
“Inmate Discipline” and/or DC–
ADM 802, “Administrative Custody
Procedures.”
(Emphasis in original.) Defendant notes that this version
did not go into effect until December 28, 2011 and is not
applicable to Plaintiff's situation. The version of DC–ADM
804 that applies to Plaintiff is a June, 2010 version. (See Doc.
49, Ex. B, ¶ 3.) As Defendant notes, Plaintiff did not raise
this issue in his briefs in opposition to Defendant's motion
for summary judgment nor in his statement of material facts.
(Doc. 72 n. 2.)
The grievance here does not involve a specific inmate
misconduct or disciplinary sanction or placement in
administrative custody. Therefore, DC–ADM 801 is not
the proper method for challenging constitutional violations
unrelated to misconduct proceedings. See Mayfield v. SCI
Cresson, 2011 U.S. Dist. LEXIS 89285 (M.D.Pa., Aug. 11,
2011).
Plaintiff's argument about the unfairness of the exhaustion
requirement under the PLRA is a claim of ignorance of that
provision in the PLRA. Ignorance of the law, however, is no
excuse.
III. Conclusion
The court will adopt the report and recommendation of
Magistrate Judge Smyser. An appropriate order will be
issued.
ORDER
For the reasons set forth in accompanying memorandum, IT
IS HEREBY ORDERED THAT:
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Africa v. Dukes, Not Reported in F.Supp.2d (2012)
2012 WL 1313412
1) The court adopts the report and recommendation of
Magistrate Judge Smyser (Doc. 62).
*2 2) Defendant Duke's motion for summary judgment is
GRANTED.
3) The Clerk of Court shall enter judgment in favor of
Defendant Duke and against Plaintiff and close the file.
End of Document
4) It is certified that any appeal from this order will be deemed
frivolous and not taken in good faith.
All Citations
Not Reported in F.Supp.2d, 2012 WL 1313412
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2
Yahweh v. Zavaras, 104 F.3d 368 (1996)
97 CJ C.A.R. 46
2
104 F.3d 368
Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a
“Table of Decisions Without Reported
Opinions” appearing in the Federal Reporter.
See CTA 10 Rule 32.1 before citing.)
United States Court of Appeals, Tenth Circuit.
Tyrone Mcdaniel YAHWEH, Plaintiff-Appellant,
v.
Aristedes ZAVARAS, Administrations
and Staffs, Defendant-Appellee.
No. 95-1515.
|
Dec. 23, 1996.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors
the citation of orders and judgments; nevertheless, an
order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Before PORFILIO, ALARCON, ** and LUCERO, Circuit
Judges.
**
Honorable Arthur L. Alarcon, Senior Circuit Judge,
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Section 1915 was substantially amended in April of 1996
the Prison Litigation Reform Act, Pub.L. No. 104-134,
110 Stat. 1321 (1996), as discussed further herein. Prior
to that date, § 1915(d) provided in part that the district
court “may dismiss the case ... if satisfied that the action
is frivolous or malicious.”
Plaintiff, a prisoner, filed a pro se suit in district court pursuant
to 42 U.S.C. § 1983, contending that he was being denied
access to the courts because prison authorities refused him
physical access to the law library. The district court ordered
a Martinez report. The Martinez report set out the prison's
policies with regard to access to legal materials, which show
that the prison provides several alternatives to physical access
to a library, such as borrowing books and other reference
materials, and seeking help from a legal assistant or an
available “access attorney.” Plaintiff filed a pleading entitled
“Motion for Summary Judgment,” which the district court
construed as his response to the Martinez report. The district
court considered both the Martinez report and plaintiff's
response in reviewing the complaint's legal sufficiency. See
Hall v. Bellmon, 935 F.2d 1106, 1112-13 (10th Cir.1991)
(holding that court may consider Martinez report as attached
to plaintiff's complaint and noting plaintiff's response).
“It is now established beyond doubt that prisoners have a
constitutional right of access to the courts.” Bounds v. Smith,
430 U.S. 817, 821 (1977). Nonetheless, physical access to a
prison law library is not a right. See Penrod v. Zavaras, 94
F.3d 1399, 1403 (10th Cir.1996) (quoting Lewis v. Casey,
116 S.Ct. 2174, 2180 (1996)). The right of access to the
courts may be satisfied by alternative means that allow
a prisoner “a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the
courts.” Bounds, 430 U.S. at 825.
LUCERO, Circuit Judge.
1
*1 In this case, plaintiff challenges the district court's
dismissal of his civil rights suit as legally frivolous pursuant to
former 28 U.S.C. § 1915(d). 2 We conclude the complaint is
not frivolous. Accordingly, we reverse and remand for further
proceedings.
1
After examining the briefs and appellate record, this
panel has determined unanimously that oral argument
would not materially assist the determination of this
appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral
argument.
Quoting the Martinez report, the district court noted the
availability of alternative means, and stated that plaintiff did
not deny the existence of the policies and the facts as set out in
the report. The court recognized plaintiff's allegations that the
access attorney was not a reasonable alternative to physical
access to the library, but characterized them as dissatisfaction
“with the manner in which he can obtain legal materials or
assistance from persons trained in the law.” The district court
then dismissed plaintiff's complaint as frivolous under 28
U.S.C. § 1915, apparently because it concluded plaintiff had
not challenged the prison's alternative means of access. We
review the district court's dismissal of the action for abuse
of discretion. Green v. Seymour, 59 F.3d 1073, 1077 (10th
Cir.1995).
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Yahweh v. Zavaras, 104 F.3d 368 (1996)
97 CJ C.A.R. 46
“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, 935 F.2d at 1110 (citing Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)). Although a liberal
reading of plaintiff's pro se pleadings does not free him of the
obligation to plead sufficient facts, “[n]ot every fact must be
described in specific detail.” Id. Our review of the record on
appeal demonstrates that, while plaintiff did not challenge the
availability of alternatives to physical access to the library,
he did challenge the adequacy of those alternatives. Further,
we cannot conclude that his allegations are vague or merely
conclusory. Cf. Hall, 935 F.2d at 1110 (standards afforded
pro se pleadings do not relieve plaintiff of burden to allege
sufficient facts); Frazier v. Dubois, 922 F.2d 560, 562 n. 1
(10th Cir.1990) (conclusory allegations insufficient to state a
claim).
*2 In his response to the Martinez report, plaintiff made
the following statements: “The access attorney limits his
visit with an inmate to 15 minutes per session and no more
than 4 session [sic] per month. The access attorney will not
perform legal research for inmates. The access attorney will
End of Document
not prepare legal documents for inmates.” Standing alone,
these factual allegations may not necessarily state a claim for
relief. However, plaintiff also alleges that “the access attorney
is not a reasonable alternative to the access to the prison law
library.” His citation to various legal authorities denouncing
other prisons' book loan policies constitutes a challenge to
the adequacy of that alternative as well. We conclude that
plaintiff's complaint set out a challenge to the prison's policies
with regard to access to the courts that should have survived
summary dismissal for legal frivolousness. Hence, the district
court abused its discretion in sua sponte dismissing plaintiff's
complaint on that basis.
REVERSED and REMANDED for further proceedings. 3
3
On remand, the district court should consider whether the
amendments to 28 U.S.C. § 1915 apply to this case and,
if so, how they interrelate with Fed.R.Civ.P. 15 and the
lenient standards afforded pro se pleadings.
All Citations
104 F.3d 368 (Table), 1996 WL 734652, 97 CJ C.A.R. 46
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2
Mayes v. Province, 376 Fed.Appx. 815 (2010)
it debatable that district court was correct in
ruling that prisoner's habeas petition was timebarred; although Antiterrorism and Effective
Death Penalty Act (AEDPA) required motions
to vacate conviction to be made within one
year from date on which conviction became
final, prisoner did not file any such state
court motion until almost four years after
conviction became final, and prisoner did not
show how Oklahoma state prison purportedly
deprived him of resources necessary to access
judicial system as required to toll one-year
filing requirement of AEDPA, especially given
that prisoner filed many other post-conviction
motions in Oklahoma state courts during period
when he was allegedly deprived of resources.
U.S.C.A. Const.Amend. 6; 28 U.S.C.A. §§ 2244,
2254.
376 Fed.Appx. 815
This case was not selected for
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1
generally governing citation of judicial decisions
issued on or after Jan. 1, 2007. See also Tenth
Circuit Rule 32.1. (Find CTA10 Rule 32.1)
United States Court of Appeals,
Tenth Circuit.
Lawrence L. MAYES, Petitioner-Appellant,
v.
Greg PROVINCE, Warden, Respondent-Appellee.
No. 10-6021.
|
April 23, 2010.
Synopsis
Background: State prisoner, who pleaded guilty in New
Mexico state court to robbery with dangerous weapon
after former conviction of two or more felonies and was
sentenced to 20 years in prison, filed pro se federal habeas
petition after unsuccessfully petitioning Oklahoma courts for
post-conviction relief. The United States District Court for
the Western District of Oklahoma, J., 2010 WL 148418,
dismissed prisoner's petition and denied his application for
certificate of appealability (COA).
Holding: Prisoner sought COA. The Court of Appeals, Neil
M. Gorsuch, Circuit Judge, held that issuance of certificate of
appealability (COA) was not appropriate.
9 Cases that cite this headnote
Attorneys and Law Firms
*815 Lawrence L. Mayes, Hominy, OK, pro se.
Stephanie D. Jackson, Attorney General for the State of
Oklahoma, Oklahoma City, OK, for Respondent-Appellee.
Before MURPHY, GORSUCH, and HOLMES, Circuit
Judges.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Request denied, and appeal dismissed.
*
West Headnotes (1)
[1]
Habeas Corpus
Certificate of probable cause
Issuance of certificate of appealability (COA)
was not appropriate for prisoner to appeal district
court order denying habeas relief based on
ineffective assistance of trial counsel in his state
court prosecution for robbery with dangerous
weapon, since jurists of reason would not find
This order is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R.App. P. 32.1 and 10th Cir.
R. 32.1.
NEIL M. GORSUCH, Circuit Judge.
**1 Lawrence L. Mayes pleaded guilty in New Mexico
state court to robbery with a dangerous weapon after former
conviction of two or more felonies. He was sentenced on
July 22, 2005, to 20 years in prison. After failing to file
a direct appeal, Mr. Mayes petitioned the Oklahoma courts
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
1
Mayes v. Province, 376 Fed.Appx. 815 (2010)
for post-conviction relief, arguing that his trial counsel was
constitutionally ineffective. The state courts rejected his
petition on procedural grounds.
Mr. Mayes then turned his efforts to federal court, filing a
pro se federal habeas *816 petition under 28 U.S.C. § 2254
on October 13, 2009. While he admitted that his petition
was filed after the expiration of 28 U.S.C. § 2244's oneyear limitations period, Mr. Mayes argued that state-created
impediments statutorily tolled the statute of limitations. See
28 U.S.C. § 2244(d)(1)(B). The district court rejected that
argument, dismissed the petition as time-barred, and denied
Mr. Mayes's application for a certificate of appealability
(“COA”).
Mr. Mayes now renews before us his request for a COA
in order to appeal the district court's order. We may issue
a COA only if the petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)
(2). Where the district court dismisses a § 2254 petition on
procedural grounds, as it did in this case, we may issue a COA
only if “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d
542 (2000). Based on our independent review of the record
in this case, and affording solicitous consideration to Mr.
Mayes's pro se court filings, see Van Deelen v. Johnson,
497 F.3d 1151, 1153 n. 1 (10th Cir.2007), we agree with the
district court that Mr. Mayes has not met this threshold.
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), motions to vacate a conviction under §
2254 must typically be made within one year from the date
on which the conviction became final. 28 U.S.C. § 2244(d)(1)
(A). Mr. Mayes's judgment and conviction became final on
August 1, 2005, when the time period for seeking to withdraw
his guilty plea expired. Although the one-year limitations
period is tolled during the pendency of a prisoner's state court
motion for post-conviction relief, 28 U.S.C. § 2244(d)(2), Mr.
Mayes didn't file any such state court motion until May 14,
2009-almost four years after his conviction became final. R.
at 16. Accordingly, Mr. Mayes's § 2254 petition was well
outside the one-year limitations period.
Mr. Mayes, for his part, does not dispute this conclusion.
R. at 13. Instead, he argues that the State of Oklahoma
prevented him from filing a timely federal habeas petition
and that we shouldn't start the clock running until after that
“impediment” was removed. See 28 U.S.C. § 2244(d)(1)(B)
(tolling the statute of limitations when an “impediment to
filing an application created by State action in violation of
the Constitution or laws of the United States ... prevented
[prisoner] from filing” his petition). Specifically, he contends
that Oklahoma failed to provide him with “an adequate law
library” and “physical access to the prison law library” in
violation of the U.S. Constitution. See Opening Br. at 2A; id.
at 3A.
**2 The United States Constitution, however, does not
guarantee prisoners “an abstract, freestanding right to a law
library or legal assistance,” Lewis v. Casey, 518 U.S. 343,
351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), but rather a
“right of access to the courts,” id. at 350, 116 S.Ct. 2174.
Cf. Smith v. Shawnee Library Sys., 60 F.3d 317, 323 (7th
Cir.1995) (“There is no ‘right to browse’ [a prison library].”).
In order to establish a violation of the constitutional right
of access, an inmate must demonstrate, among other things,
how the alleged shortcomings in the prison actually “hindered
his efforts to pursue a legal claim.” Lewis, 518 U.S. at
351, 116 S.Ct. 2174. It follows that, to invoke § 2244(d)
(1)(B)'s tolling provision-to show that an “impediment ...
created by State action in violation of the Constitution ...
prevented” the filing of a timely petition-an inmate must
explain how the prison's alleged constitutional deficiencies
hindered *817 his efforts to pursue his claim within the
prescribed statute of limitations. See Miller v. Marr, 141 F.3d
976, 978 (10th Cir.1998) (denying relief where petitioner
“provided no specificity regarding the alleged lack of access”
and how it impacted his delay, explaining that “[i]t is not
enough to say that the [prison] facility lacked all relevant
statutes and case law or that the procedure to request specific
materials was inadequate”); Garcia v. Hatch, 343 Fed.Appx.
316, 318 (10th Cir.2009) (unpublished) (same); Weibley v.
Kaiser, 50 Fed.Appx. 399, 403 (10th Cir.2002) (unpublished)
(holding petitioner's claim “insufficient because he does
not allege specific facts that demonstrate how his alleged
denial of [legal] materials impeded his ability to file a
federal habeas petition” in a timely manner); cf. United
States v. Martinez, 303 Fed.Appx. 590, 596 (10th Cir.2008)
(unpublished) (refusing equitable tolling because petitioner
“has not provided this Court with specific details regarding
what restrictions actually were placed on his access to legal
materials or how such restrictions hindered his ability to file
his § 2255 motion” in a timely manner).
Mr. Mayes has not attempted such a showing. Instead,
he merely complains about the adequacy of the library
facilities and arrangements, making no effort to explain how
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
Mayes v. Province, 376 Fed.Appx. 815 (2010)
these deficiencies hindered his ability to file a timely postconviction motion. Indeed, he admits in his filings that he
could “submit a written request for legal materials[,] and
a prison guard would hand deliver the legal materials to
his cell.” R. at 13. And it appears that Mr. Mayes filed
many other post-conviction motions in the Oklahoma state
courts during the period when he was allegedly deprived
of the resources necessary to access the judicial system.
See Mayes v. Province, 353 Fed.Appx. 100, 105 (10th
Cir.2009) (unpublished) (denying COA in response to same
argument made by Mr. Mayes when he sought to challenge
another, apparently separate and distinct robbery conviction).
In these circumstances, although Mr. Mayes's allegations
might suggest that additional resources could have been of
greater assistance to him, “there is no basis in the record
before us to believe that [he] was incapable of filing a timely
habeas petition given the resources available.” Garcia, 343
Fed.Appx. at 319. 1
End of Document
1
Mr. Mayes does argue for the first time on appeal that
he was denied a copy of AEDPA and thus couldn't have
known of the procedural rules he was required to follow.
However, we do not normally consider arguments raised
for the first time on appeal, and we accordingly decline
to pass upon whether such a denial would invoke the §
2244(d)(1)(B) exception. See Dockins v. Hines, 374 F.3d
935, 940 (10th Cir.2004) (declining to consider challenge
to prison library made for first time on appeal).
**3 Because reasonable jurists could not debate that Mr.
Mayes's petition is time-barred, the request for a COA is
denied, and this appeal is dismissed. We grant Mr. Mayes's
motion to proceed in forma pauperis.
All Citations
376 Fed.Appx. 815, 2010 WL 1632905
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3
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