Millbrook v. Spitz

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Raymond P. Moore

Civil Action No. 1:18-cv-01962-RM-KMT

KIM MILLBROOK,

Plaintiff,

v.

SPITZ, Assistant Warden,

MURTON, Lieutenant,

COLLINS, Correctional Officer, and

COCHRAN, Correctional Officer, in their individual and official capacities, and

UNITED STATES OF AMERICA,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter is before the Court on the August 26, 2019, recommendation of Magistrate

Judge Kathleen M. Tafoya (ECF No. 64) to deny the individual Defendants’ motion for summary

judgment (ECF No. 33) and to grant in part and deny in part the individual Defendants’ motion

to dismiss (ECF No. 53). Plaintiff, a federal prisoner proceeding pro se, has filed an objection to

the recommendation (ECF No. 67) along with three new motions (ECF Nos. 64, 68, 69).

Defendants do not object to the recommendation. They have responded to Plaintiff’s objection

but not to his new motions. For the reasons below, the Court overrules Plaintiff’s objection,

accepts and adopts the recommendation, denies the motion for summary judgment, grants in part

and denies in part the motion to dismiss, and denies two of Plaintiff’s new motions.1 The

1 Plaintiff’s motion for an examination pursuant to Fed. R. Civ. P. 35 (ECF No. 69) has been referred to the

magistrate judge. (ECF No. 71.)

recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R.

Civ. P. 72(b).

I. LEGAL STANDARDS

Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of the

magistrate judge’s recommendation that is properly objected to. An objection is proper only if it

is sufficiently specific “to focus the district court’s attention on the factual and legal issues that

are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.

1996). “In the absence of a timely objection, the district court may review a magistrate judge’s

report under any standard it deems appropriate.” Summers v. State of Utah, 927 F.3d 1165, 1167

(10th Cir. 1991).

Summary judgment is appropriate only if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986); Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir.

2018). Applying this standard requires viewing the facts in the light most favorable to the

nonmoving party and resolving all factual disputes and reasonable inferences in his favor.

Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). Whether there is a genuine

dispute as to a material fact depends upon whether the evidence presents a sufficient

disagreement to require submission to a jury or is so one-sided that one party must prevail as a

matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv

ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).

In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court accepts as true

all well-pleaded factual allegations in the complaint, views those allegations in the light most

favorable to the plaintiff, and draws all reasonable inferences in the plaintiff’s favor. Brokers’

Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox,

613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007). “Factual allegations must be enough

to raise a right to relief above the speculative level,” id. at 555, and conclusory allegations are

insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The Court is “not

bound to accept as true a legal conclusion couched as a factual allegation,” Twombly, 550 U.S.

at 555 (quotation omitted). Pursuant to 28 U.S.C. § 1915(e)(2)(B), failure to state a claim is a

ground for sua sponte dismissal where, as here, the plaintiff is permitted to proceed without

payment of an initial partial filing fee. Jones v. Bock, 549 U.S. 199, 214 (2007).

Plaintiff proceeds pro se, so the Court liberally construes his pleadings. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as his advocate. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

II. BACKGROUND

Plaintiff is an inmate at the administrative maximum facility in Florence, Colorado.

Plaintiff asserts that Defendant Spitz, the assistant warden, took offense to a comment he made

and told him “that she was going to teach [him] a lesson.” (ECF No. 16 at 6.) Soon afterward,

Defendants Spitz and Murton and four unknown correctional officers came to Plaintiff’s cell to

conduct a search. Plaintiff was handcuffed and placed in another cell. He complained that the

handcuffs were cutting off blood circulation, but the officers “told [him] to shut [his] mouth” (id.

at 7) and refused to loosen them. Plaintiff was left in the cell for twenty to thirty minutes while

his cell was searched. Defendant Murton and the four unknown officers then took Plaintiff—still

handcuffed—back to his cell, telling him that they would teach him not to mess with Defendant

Spitz or any female staff at the prison. Defendant Murton then slammed Plaintiff’s head and

right shoulder against the bars and tried to break his arm by pulling up on the handcuffs.

Defendant Murton also stuck his finger in Plaintiff’s anus for three to five seconds. Defendant

Murton then removed the handcuffs and left. Plaintiff suffered “permanent nerve damage in

[his] wrists and fingers” (id. at 11) and injuries to his head, neck, back, and arms as well as other

symptoms, including severe headaches and post-traumatic stress disorder.

Plaintiff reported the incident to Defendants Collins and Cochran, stating that he was in

pain and that his anus was bleeding. Defendants Collins and Cochran denied Plaintiff’s requests

for medical treatment. When Plaintiff said he would file a grievance against them, Defendant

Collins “said that he would kick [Plaintiff’s] ass,” and Defendant Cochran “said he was going to

spray [Plaintiff] with mace” (id. at 13). Various other prison officials also denied Plaintiff’s

requests for medical treatment.

Later, Plaintiff told Defendant Spitz that he would file a grievance or lawsuit against her

and other prison officials. She responded that “she was going to have [him] set up to be beat up

or killed and to watch [his] back” (id. at 18).

Weeks later, after Plaintiff filed a lawsuit against the individual Defendants, Defendant

Collins threatened Plaintiff that he was “going to get your dumb black ass sooner or later” (id.).

In his lawsuit against the individual Defendants, Plaintiff alleges violations of his First

and Eight Amendment rights,2 seeking relief under Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971), as well as 18 U.S.C. § 3626 and 42 U.S.C. § 1997e(e). The Court

dismissed several of Plaintiff’s claims, leaving only the Eighth Amendment excessive force

claims against Defendants Spitz and Murton and the First Amendment retaliation claims against

2 Although Plaintiff specifically alleged only Eighth Amendment violations in his complaint, this Court determined

that his allegations, liberally construed due to his pro se status, also implicated First Amendment retaliation claims.

(ECF No. 17 at 10-11.)

Defendants Spitz, Collins, and Cochran. (ECF No. 17 at 12.) Plaintiff then brought a separate

lawsuit against the United States, alleging various tort claims based on the same underlying

conduct and seeking relief under the Federal Tort Claims Act (“FTCA”). Because the two cases

are based on substantially similar allegations, they have been consolidated. (ECF No. 43.)

III. DISCUSSION

A. Motion for Summary Judgment

The individual Defendants argue they are entitled to summary judgment because Plaintiff

failed to exhaust his administrative remedies with respect to his claims against them. Plaintiff

does not dispute that he did not exhaust his administrative remedies for these claims; he argues

that the individual Defendants’ threats and intimidation prevented him from filing grievances,

and therefore those administrative remedies were unavailable to him.

The magistrate judge recommends denying the individual Defendants’ motion for

summary judgment because, granting all justifiable inferences in Plaintiff’s favor, the individual

Defendants’ conduct deterred him from filing any grievances, and thus there are disputed

material facts about whether the prison grievance process was available to Plaintiff. The Court

discerns no error in the magistrate judge’s analysis of this issue, and Defendants did not object to

the recommendation. Therefore, the motion is denied for the reasons stated in the

recommendation.

B. Motion to Dismiss

The individual Defendants seek dismissal of the claims against them on the grounds that

there is no Bivens remedy for these claims and because they are entitled to qualified immunity.

Plaintiff argues in a conclusory fashion that he stated Eighth Amendment claims against

Defendants Spitz and Murton and First Amendment claims against Defendants Spitz, Collins,

and Cochran.

Before reaching the parties’ arguments, the magistrate judge determined sua sponte that

Plaintiff’s claims against the individual Defendant in their official capacities are subject to

dismissal because they are barred by the doctrine of sovereign immunity. “[A] Bivens claim can

be brought only against federal officials in their individual capacities. Bivens claims cannot be

asserted directly against the United States, federal officials in their official capacities, or federal

agencies.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (citations omitted).

Plaintiff fails to respond meaningfully to this part of the recommendation, as his objection cites

only FTCA cases. No motion is before the Court with respect to Plaintiff’s claims against the

United States. Under these circumstances, the Court agrees that dismissal of the official-capacity

claims against the individual Defendants is appropriate.

The magistrate judge sua sponte also determined that Plaintiff’s claims against the

individual Defendants for declaratory relief should be dismissed because there is no case or

controversy regarding such relief. “[W]here a plaintiff seeks a declaratory judgment against his

opponent, he must assert a claim for relief that, if granted, would affect the behavior of the

particular parties listed in his complaint.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011).

Here, granting declaratory relief would amount to merely a retrospective opinion that he was

wrongly harmed by the individual Defendants. See id. Plaintiff fails to respond meaningfully to

this part of the recommendation. The Court concludes that the magistrate judge’s analysis was

thorough and sound with respect to this issue and discerns no clear error on the face of the

record. Accordingly, dismissal of Plaintiff’s claims against the individual Defendants for

declaratory relief is appropriate.

Turning to the parties’ arguments with respect to Plaintiff’s claims against the individual

Defendants in their individual capacities, the magistrate judge aptly applied the framework

established in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), for determining whether to recognize an

implied damages remedy under Bivens. See id. at 1857 (“[E]xpanding the Bivens remedy is now

a ‘disfavored’ judicial activity.”). A court must first determine “whether a case presents a new

Bivens context” because it “is different in a meaningful way from previous Bivens cases” decided

by the Supreme Court. Id. at 1859. Second, if the case does present an extension of Bivens into

a new context, the court must consider “if there are special factors counselling hesitation” in

permitting the extension, including the existence of an alternative remedial structure. Id.

at 1857-58 (quotation omitted).

Here, the magistrate judge determined that Plaintiff’s First and Eight Amendment claims

present new Bivens contexts. The magistrate further determined that Plaintiff had alternative

means for protecting the interests at stake, including injunctive relief and the mandamus statute.

Plaintiff fails to meaningfully respond to the magistrate judge’s reasoning. The Court discerns

no error in the magistrate judge’s analysis and concludes that expanding the Bivens remedy to

include Plaintiff’s claims is not appropriate.

Based on the Court’s conclusion that Bivens does not provide a remedy for damages

against the individual Defendants, there is no need to address their contention that they are

entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“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.” (quotation omitted)). However, to the extent

Plaintiff seeks injunctive relief only, Plaintiffs First and Eighth Amendment claims survive.

See 18 U.S.C. § 3626 (providing appropriate remedies with respect to prison conditions). No

party has objected to the magistrate judge’s determination that the case should proceed against

the individual Defendants on Plaintiff’s First and Eighth Amendment claims seeking injunctive

relief. Accordingly, the motion to dismiss is granted except to the extent that Plaintiff may

pursue injunctive relief on his First and Eighth Amendment claims.3

C. Other Motions

Since the recommendation was filed, Plaintiff has filed other motions in addition to his

objection. In his motion to clarify (ECF No. 68), Plaintiff states that he “needs some type of

confirmation” that his declaration/motion in support of a preliminary and permanent injunction is

still pending in this case. (ECF No. 66 at 2.) However, as noted in the motion to clarify, the

Court denied that declaration/motion on August 23, 2019. (ECF No. 63.) This Order establishes

the current status of Plaintiff’s claims. To the extent that Plaintiff’s motion seeks further

clarification of the status of his claims, the Court denies the motion.

In his motion for reconsideration (ECF No. 68), Plaintiff appears to raise additional

objections to the magistrate judge’s recommendation and to request an evidentiary hearing on

newly discovered evidence. But, in addition to being procedurally improper, the arguments

raised do not materially add to the objections addressed above, and Plaintiff cites no new

evidence. For these reasons, the Court denies the motion.

IV. CONCLUSION

Therefore, the Court

(1) OVERRULES Plaintiff’s objection (ECF No. 67),

3 Plaintiff’s tort claims against the United States remain pending as well. The United States has filed an answer in

this case (ECF No. 54) but has not otherwise responded to the claims against it.

(2) ACCEPTS and ADOPTS the magistrate judge’s recommendation (ECF No. 64),

(3) DENIES the individual Defendants’ motion for summary judgment (ECF No. 33),

(4) GRANTS IN PART and DENIES IN PART the individual Defendants’ motion to

dismiss (ECF No. 53), as stated above, and

(5) DENIES Plaintiffs other motions (ECF Nos. 66, 68).

DATED this 23rd day of September, 2019.

BY THE COURT:

United States District Judge