White v. Baldridge

1

DEMARCO WHITE, Plaintiff, v. JESSE BALDRIDGE, TAYLOR CAMP, and TERRY JAQUES, Defendants.

Civil Action No. 21-cv-02937-NYW-STV

United States District Court, D. Colorado

December 19, 2022

ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION

Nina Y. Wang United States District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge Scott T. Varholak entered on November 8, 2022, [Doc. 81], Plaintiff's Objection to Magistrate[] [Judge's] Recommendation, [Doc. 84], and the “Judicial Complaint” filed on November 7, 2022 [Doc. 77], which the Court construes as a Rule 72(a) Objection to Judge Varholak's rulings at the October 13 2022 Status Conference. [Doc. 73]. For the reasons set forth below, Plaintiff's Objections are respectfully OVERRULED and the Recommendation is ADOPTED.

LEGAL STANDARDS

I. Rule 72(a)

When a magistrate judge issues an order on a non-dispositive matter, “[a] party may serve and file objections to the order within 14 days after being served with a copy.” Fed.R.Civ.P. 72(a). “The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. Under this standard of review, a magistrate judge's finding should not be rejected merely because the district court would have decided the matter differently. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). A district court must affirm a magistrate judge's decision unless “on the entire evidence,” the district court “is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quotation omitted).

II. Rule 72(b)

A district court may refer a dispositive motion to a magistrate judge for recommendation. 28 U.S.C. § 636(b)(1)(B). The district court “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). “[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., 73 F.3d 1057, 1060 (10th Cir. 1996). Such specific objections permit “the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. at 1059.

III. Dismissal Under Rule 12(b)(6)

Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010). The plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion).

BACKGROUND

The factual and procedural background of this case is set forth in Judge Varholak's Recommendation, see [Doc. 81 at 1-4], and the Court discusses this background here only as necessary for purposes of this Order. Plaintiff Demarco White (“Plaintiff” or “Mr. White”) initiated this action on November 1, 2021, see [Doc 1], and filed a Second Amended Prisoner Complaint on March 14, 2022, naming three Defendants in this matter-Jesse Baldridge, Taylor Camp, and Terry Jaques-all of whom are alleged to be employees of the Colorado Department of Corrections (“CDOC”). [Doc. 11 at 2-3].

I. Factual Background

At the time of the events giving rise to this cause of action, Mr. White was incarcerated within the CDOC at the Limon Correctional Facility (“LCF”). [Id. at 8].^[1]Plaintiff alleges that Defendants Baldridge and Camp entered his cell because Plaintiff required medical attention. [Id.]. Plaintiff was “unresponsive, uncombative, [and] incoherent.” [Id.]. Plaintiff alleges that Defendant Camp “intentionally and unnecessarily[,] with [a] sadistic state of mind and with total disregard for the Plaintiff's medical condition and pulmonary condition,” administered pepper spray to Plaintiff, which caused “[a]sphyxiation, pain and suffering, and undetermine[d] damage to the Plaintiff's pulmonary condition.” [Id.].

In addition, Mr. White alleges that Defendant Baldridge then grabbed and twisted Plaintiff's body and arm, forcing and “slamming” his body to the floor, despite Plaintiff's uncombative state. [Id. at 9]. Defendant Baldridge's actions caused Plaintiff “extreme pain and injury” and “a herniated dis[c] requiring surgery.” [Id. at 4]. Mr. White alleges that Defendants Baldridge and Camp acted pursuant to official LCF policies implemented by Defendant Terry Jaques, the LCF Warden. [Id. at 1, 6].

In his Second Amended Complaint, Plaintiff asserts one claim for relief under 42 U.S.C. § 1983 based on a violation of his Eighth Amendment right to be free from cruel and unusual punishment. [Id. at 5]. Plaintiff seeks (1) compensatory and punitive damages; (2) “injunctive relief in the form of a[n] order directing the defendants to provide adequate medical” treatment to Plaintiff; and (3) “prospective injunctive relief prohibiting the defendants” from using pepperspray on Plaintiff. [Id. at 12, 14-15].

II. Service on Defendants

On April 8, 2022, the CDOC returned a waiver of service as to Defendant Jaques, [Doc. 17], but also informed the Court that Defendants Baldridge and Camp no longer worked for the CDOC. [Doc. 18]. The CDOC provided these Defendants' last known residential contact information to the Court for service of process. [Id. at 1].

Based on the CDOC's representations, this Court sua sponte ordered the United States Marshals Service (“USMS”) to “attempt service on Defendants Baldridge and Camp at the addresses provided for these Defendants” by the CDOC. [Doc. 19 at 1].^[2]The USMS attempted service on these Defendants, and in June 2022, summonses were returned unexecuted as to both Defendants Camp and Baldridge. [Doc. 38; Doc. 40]. The process receipt for Defendant Baldridge indicated that Defendant Baldridge had moved from the address provided by the CDOC in February 2022. [Doc. 39 at 2]. Similarly, the process receipt for Defendant Camp stated that he had moved in December 2021. [Doc. 37 at 2]. Thus, service was not successful on Defendants Baldridge and Camp.

On September 12, 2022, Plaintiff filed a “Motion for the Court to Direct the United States Marshal's [sic] Service to Effect Service on Defendants Baldbridge [sic] and Camp.” [Doc. 61]. In that Motion, Plaintiff stated that he “believe[d] that when the U.S. Marshal's service was unable to serve the defendants at the CDOC, it stopped trying to get the defendants served,” and he “mov[ed] the Court to issue its ORDER directing the U.S. Marshal's service to effect service of these two defendants.” [Id. at ¶¶ 6-7]. Judge Varholak denied the Motion, stating that “the Court is not responsible for lack of service where a plaintiff does not provide correct information required for service.” [Doc. 63 (citing Pemberton v. Patton, 673 Fed.Appx. 860, 864 (10th Cir. 2016))]. Judge Varholak informed Plaintiff of his right to object to that ruling under Rule 72(a). See [id.]. Plaintiff did not object to that ruling.

On October 13, 2022, Judge Varholak held a Status Conference in this case. He informed Plaintiff that if he wished to proceed on his claims against Defendants Baldridge and Camp, he would need to serve those Defendants. [Doc. 73 at 1]. Plaintiff made an oral motion for an extension of time to complete service on these Defendants, which was granted; Judge Varholak granted Plaintiff an additional 60 days to serve Defendants Baldridge and Camp, through December 12, 2022. [Id.].

Plaintiff subsequently filed his “Judicial Complaint.” [Doc. 77]. Therein, he states that “[f]or whatever reason, the District Court refuses to compel the United States Marshal's service to effect service and serve two of the defendants in this case.” [Id. at 1]. He states that “[t]hey have told me on several occasions that it is in fact my responsibility to effect service on these defendants,” but asserts that pursuant to 28 U.S.C. § 1915, a litigant proceeding in forma pauperis is entitled to assistance from the USMS in completing service. [Id.]. He further states that he “ha[s] reason to believe” that the CDOC's representation that Defendants Baldridge and Camp no longer work at the CDOC “is simply not true, and that at least one of the defendants still works at that facility.” [Id.]. The Court construes this submission as an Objection to Judge Varholak's rulings at the October 13, 2022 Status Conference.

III. The Motion to Dismiss and Recommendation

On June 27, 2022, Defendant Jacques filed a Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) & 12(b)(6) (the “Motion to Dismiss”), which seeks dismissal of Plaintiff's claim against him. [Doc. 29]. Judge Varholak issued the pending Recommendation on November 8, 2022 recommending that the Motion to Dismiss be granted in its entirety. [Doc. 81]. Relevant here, Judge Varholak first concluded that Plaintiff's claims for injunctive relief are moot because Plaintiff “is no longer housed at LCF, where Defendant [Jaques] is employed,” and Plaintiff “does not demonstrate a reasonable expectation that he will be transferred back to [LCF] and be subject to the alleged conduct again.” [Id. at 7-8]. Judge Varholak further noted that a...