Ellis v. Denver Cnty. of City

1

DAWAUNE ELLIS, II, Plaintiff, v. DENVER COUNTY OF CITY, RICHARD ANDERSON, CARLOS HERNANDEZ, ELIAS DIGGINS, FRANCISCO GONZALES, JOSEPH BURGOS, SPENCER HASWELL, RYAN SEWITSKY, and SEVERAL UNKNOWN OFFICERS, Defendants.

Civil Action No. 22-cv-01874-RM-KAS

United States District Court, D. Colorado

August 27, 2024

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kathryn A. Starnella United States Magistrate Judge

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Claim and Lack of Compliance with Court Orders [#82]^[1](the “Motion”). Plaintiff filed a Response [#85] in opposition to the Motion [#82], Defendant filed a Reply [#87], and Plaintiff filed two Surreplies [#88,89]. The Motion [#82] has been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#83]. The Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons stated below, the Court respectfully RECOMMENDS that the Motion [#82] be GRANTED.

I. Background^[2]

Plaintiff proceeds in this matter as a pro se litigant.^[3] On April 11, 2018, Plaintiff was taken into custody and remained, at all times relevant to this litigation, a pretrial detainee at the Denver Detention Center of the Denver Sheriff's Department. Fifth Am. Compl. [#81] at 6-10. He states that, due to his mental health issues, he was assaulted on several occasions by Defendants Richard Anderson (“Anderson”), Carlos Hernandez (“Hernandez”), Francisco Gonzalez (“Gonzalez”), Joseph Burgos (“Burgos”), Spencer Haswell (“Haswell”), and several other unidentified officers. Id. at 6.

On June 21, 2019, Defendants Anderson and Hernandez approached Plaintiff's cell. Id. They tried to open the cell door but could not because Plaintiff had blocked the door with an object. Id. This “upset” these Defendants, and they allegedly “planned to assault” him without following appropriate procedures, i.e., turning on the lights in the cell, organizing a team, and coming into the cell with a camera. Id. Plaintiff states that, when he realized they were trying to enter the cell, he “took the object with the sheet off the door.” Id. at 7. When the two entered his cell, they overpowered him, held him against his bed, and allegedly proceeded to punch him in the face. Id. Defendant Hernandez also punched Plaintiff's body. Id.

On February 17, 2020, Plaintiff states that he was assaulted by Defendants Burgos and Haswell when they applied excessive force to his legs, allegedly intending to break them, with a weapon called an OPN, which left permanent scars and psychological damage. Id. at 8.

While in custody, Plaintiff experienced debilitating mental health issues and, as a result, was placed in solitary confinement from February 17, 2020, to July 27, 2021. Id. at 6, 8. Plaintiff states that his conditions of confinement were severe because they deadlocked him into his cell for seventeen months, denied him time outside his cell, and denied him daily showers. Id. at 8.

On October 30, 2020, Defendant Gonzales and three unidentified officers came to Plaintiff's cell, overpowered him, put him in handcuffs, and allegedly assaulted him by kneeling on his thigh and rib cage, leaving permanent scars on his body. Id. at 7. The four officers then brought a wheelchair and put him in it, taking him to court without a “drag order”. Id. at 8.

Plaintiff further states that he has filed several complaints in several different courts, but that, from April 11, 2018, (the date of Plaintiff's incarceration) until his resignation on an unknown date, Defendant Sewitsky was a mailing officer who held or did not timely deliver Plaintiff's legal mail. Id. at 9. Plaintiff states that he should have received his legal mail within 48 hours, but he received it twenty days later instead, which caused several of his cases to be dismissed. Id.

Plaintiff seeks $50,000,000.00 in damages for his physical and mental injuries. Id. at 11. In the present Motion [#82], Defendants seek dismissal of all claims asserted by Plaintiff, the construction of which is discussed in Section III.B. below.

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). However, conclusory allegations are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Rather, “[a] complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint includes ‘well-pleaded allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Carraway v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Iqbal, 556 U.S. at 679).

“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do .... [n]or does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

III. Analysis

A. Preliminary Issues

Before turning to the substance of the Motion [#82], the Court addresses a few preliminary issues.

1. Timing of Plaintiff's Response

First, Defendants note that Plaintiff's Response [#85] was not timely filed. Reply [#87] at 9. Local Rule 7.1(d) requires a response to be filed within 21 days of service of a motion. D.C.COLO.LCivR 7.1(d). Here, the Motion [#82] was filed and mailed to Plaintiff on November 2, 2023. See [#82] at 20. Taking into account mailing time, Plaintiff's Response was due on or about November 27, 2023. Plaintiff's Response [#85] is dated December 13, 2023, was postmarked December 19, 2023, and was received by the Court on December 21, 2023. See [#85] at 1, 17-18. In his Surreply [#89], Plaintiff asserts that his pro se status and his mental illness caused him to take longer to complete his Response [#89] than the time allowed. See [#89] at 7-9.

The Court accepts Plaintiff's Response [#85]. First, although Plaintiff's Response [#85] was untimely, its filing was not so significantly delayed that it caused any significant delay in this lawsuit or any prejudice to Defendants. Second, the Court considers Plaintiff's status as a pro se litigant and his mental illness challenges, including the fact that he has been held at the Colorado Mental Health Institute at Pueblo. However, the Court warns Plaintiff that, in the future, should he need additional time to respond to a motion or to comply with a deadline, he must file a motion asking for additional time and identifying how much additional time he believes he needs. Failure to do so may result in the Court striking late-filed documents from this lawsuit.

2. Attachments to Plaintiff's Briefs

Next, Defendants argue that the Court should not consider Plaintiff's Affidavit II that is attached to Plaintiff's Response [#85]. See [#85] at 13-17. The Court notes that this attachment, as well as Plaintiff's attachments to his Surreplies [#88, #89], are generally improper. Normally, when considering a motion to dismiss, the Court must disregard facts supported by documents other than the complaint unless the Court first converts the motion to dismiss into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). However, the Court may consider documents outside of the complaint on a motion to dismiss in three instances. First, the Court may consider outside documents pertinent to ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000). Second, the Court may consider outside documents subject to judicial notice, including court documents and matters of public record. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). Third, the Court may consider outside documents that are both central to the plaintiff's claims and to which the plaintiff refers in his complaint. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997). Here, the Court has examined the documents attached to Plaintiff's briefs and finds that they are either immaterial or not appropriately considered under these legal standards.

3. Doe Defendants

In addition to the named Defendants, Plaintiff brings this lawsuit against several unidentified officers, who are referred to in various ways throughout the Fifth Amended Complaint [#81], including as “several unknown supervisors,” see [#81] at 3, “3 unknown officer[s],” see id. at 7, and “several unknown officer[s],” see id. at 10.

Plaintiff proceeds in forma pauperis in this case pursuant to 28 U.S.C § 1915. Order [#6]. When a litigant is given leave to proceed without full prepayment of the initial filing fee, then, “[n]otwithstanding any filing fee, or any portion thereof, that may...