# Rosa v. Bonk

> District Court, D. Colorado · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10640965

## Case

- **Court:** District Court, D. Colorado
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640965

## How later opinions describe it (automated extraction)

- noting that the “previous statement that the Eighth and Fourteenth Amendment analyses are ‘identical[,]’” as set forth in Lopez, “is no longer good law after the Supreme Court’s decision in Kingsley[.]”
- stating that the “legal norms” relevant to the excessive force claim had been clearly established at the time of the incident in which a pretrial detainee was “handcuffed, prone on his stomach, and not resisting while much of the disproportionate use of force occurred”
- stating, “[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than would apply on summary judgment.”
- stating that “pro se parties generally should be given leave to amend”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 23-cv-00983-GPG-KAS

JOHN ROSA,

Plaintiff,

v.

MCALLISTER, El Paso County Deputy,
CARTER, El Paso County Deputy, and
BONK, El Paso County Sergeant,

Defendants.
_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA

This matter is before the Court on the Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint1 Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [#41]
(the “Motion”). Plaintiff, who proceeds as a pro se litigant,2 filed a Response [#46]3 to the
Motion [#41], and Defendants filed a Reply [#49]. The Motion [#41] has been referred to
the undersigned for a recommendation pursuant to 28 U.S.C. §§ 636(b)(1)(A)-(B), Fed.

1 While the operative Complaint [#20] is referred to as the “Second Amended Complaint,” see
Motion [#41] at 1; Order to File Second Amended Prisoner Complaint [#16], the docket reflects
that Plaintiff has filed three amended complaints. See Am. Compls. [##4, 12, 20].

2 The Court must liberally construe the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

3 “[#46]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
R. Civ. P. 72(a)-(b), and D.C.COLO.LCivR 72.1(c)(3). See [#29]. The Court has reviewed
the briefs, the entire case file, and the applicable law. For the reasons set forth below, the
Court RECOMMENDS that Defendants’ Motion [#41] be GRANTED in part and DENIED
in part.
I. Background4

Plaintiff’s claims relate to his confinement in the El Paso County Criminal Justice
Center (“CJC”), where he was confined as a pretrial detainee. Am. Compl. [#20] at 2.
Defendants McAllister and Carter are allegedly deputies and Defendant Bonk is allegedly
a sergeant, all with the El Paso County Sheriff’s Office (“EPSO”). Id. at 1; Motion [#41] at
1.
Plaintiff alleges three separate incidents. First, on March 28, 2023, Defendant
McAllister “push[ed] [Plaintiff] out of his way when [Plaintiff] was standing next to a cell
talking to [another inmate].” Am. Compl. [#20] at 4. Second, on April 4, 2023, Defendant
Carter blocked Plaintiff from ascending a flight of stairs by “put[ting] his hand on [Plaintiff’s]

chest [and] pushing[.]” Id. When Plaintiff turned and held on to the railing to “try to keep
[himself] from falling down,” Defendant Carter continued “pushing [him] in the back,” and
Defendant McAllister “came at” Plaintiff. Id. Plaintiff “put [his] left hand up so [that he could]
put space,” and when Plaintiff “put his hand down,” Defendant McAllister “paused [and]
then punched [him] in [the] face,” causing Plaintiff to fall on his back. Id. “When [Plaintiff]
was on [his] back not fighting,” Defendant McAllister proceeded to “knee[ ] [him] in the

4 To resolve the Motion [#41], the Court accepts as true all well-pleaded, as opposed to
conclusory, allegations made in Plaintiff's Amended Complaint [#20]. See Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
face two times,” “place[ ] his knee on [Plaintiff’s] face,” and “put his weight into [his knee]
on [Plaintiff’s] face.” Id. Plaintiff alleges that the assault resulted in scratches and bruising
on his face, as well as a chipped tooth. Id. at 4-5.
Finally, Plaintiff claims that after these two incidents, on April 4, 2023, Defendant

Bonk “placed [Plaintiff] in a holding cell after taking pictures of [his] face where [he] had
scratches . . . and a bruise.” Id. at 5. Plaintiff told Defendant Bonk that the injuries “[were]
from his deput[ies]” assaulting him. Id. After Defendant Bonk left, Plaintiff alleges that
Defendant Bonk “went and had [Plaintiff] placed in the hole where [he] had no contact
with any other person for over a month.” Id.
Plaintiff brings two claims against the Defendants in their individual capacities: (1)
Claim One: excessive force, in violation of Plaintiff’s Fourteenth Amendment rights,
against Defendant McAllister and Defendant Carter; and (2) Claim Two: punishment of a
pretrial detainee, in violation of his Fourteenth Amendment rights, against Defendant
Bonk. Id. at 2, 3.5

Defendants argue that Plaintiff’s Complaint [#20] should be dismissed for failure to
comply with Federal Rule of Civil Procedure 8 because “the essential facts identifying the
excessive use of force by Deputies Carter and McAllister remain devoid of necessary

5 Plaintiff had asserted claims against Defendants in their individual and official capacities. Am.
Compl. [#20] at 2-3. The official capacity claims against Defendants have been dismissed and
only his Fourteenth Amendment individual capacity claims remain. See Order Drawing Case [#28]
at 2. In Plaintiff’s Response [#46] he asserts that “the Defendants violated [his] 5th, 8th and 14th
Amendments [sic].” Response [#46] at 1. However, a party may not amend his complaint through
new allegations in response to a motion to dismiss. See, e.g., Kan. Motorcycle Works USA, LLC
v. McCloud, 569 F. Supp. 3d 1112, 1127 (D. Kan. 2021) (stating that “a party may not amend its
complaint by way of arguments in a brief”); Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020
WL 5815915, at *5 (D. Colo. Sept. 30, 2020) (stating that it is “well established that [a] [p]laintiff
may not amend his [c]omplaint by adding factual allegations in response to [the] [d]efendants’
[m]otion to [d]ismiss”).
context” and Plaintiff “fail[s] to provide any statement that shows he is entitled to relief.”
Motion [#41] at 3-4. Defendants also seek dismissal under Federal Rule of Civil
Procedure 12(b)(6) because “Plaintiff fails to include any ‘well-pled facts’ in support of his
§ 1983 claims against the Defendants and instead merely makes a series of ‘conclusory

statements’ regarding the alleged conduct of those Defendants.” Id. at 5.
Defendants also seek dismissal under Federal Rule of Civil Procedure 12(b)(1)
because they assert an “entitle[ment] to qualified immunity” due to Plaintiff’s “fail[ure] to
establish a violation of a constitutional right.” Id. at 5-7. However, qualified immunity-
dismissal falls under Rule 12(b)(6). See Lybrook v. Farmington Mun. Sch. Bd. of Educ.,
232 F.3d 1334, 1337 (10th Cir. 2000); Kemp v. Lawyer, 846 F. Supp. 2d 1170, 1172 (D.
Colo. 2012) (bearing in mind the Rule 12(b)(6) standard when deciding the qualified
immunity defense raised on a motion to dismiss); see also Thomas v. Kaven, 765 F.3d
1183, 11984 (10th Cir. 2014) (stating, “[a]sserting a qualified immunity defense via a Rule
12(b)(6) motion . . . subjects the defendant to a more challenging standard of review than

would apply on summary judgment.”).
II. Legal Standard

A. Fed. R. Civ. P. 12(b)(6)
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). “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 Fire & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22,

2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In so doing, the Court views
these allegations in the light most favorable to Plaintiff, as the non-moving party. Moore
v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006).
“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).
B. Qualified Immunity
The doctrine of qualified immunity “shields government officials performing
discretionary functions from liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “The law is clearly established when a Supreme
Court or Tenth Circuit decision is on point, [though the decision need not be precisely on
point] or if the clearly established weight of authority from other courts shows that the right
must be as plaintiff maintains.” Dodds v. Richardson, 614 F.3d 1185, 1206 (10th Cir.
2010) (internal quotation marks and citation omitted); see also Redmond v. Crowther, 882
F.3d 927, 935 (10th Cir. 2018) (noting that on-point precision is unnecessary). “The
contours of the right must be sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
“[I]n light of pre-existing law the unlawfulness must be apparent.” Id. “[T]he notice
requirement can be discerned from a range of excessive-force cases that ‘illustrate the
types of objective circumstances potentially relevant to a determination of excessive
force.’” Wise v. Caffey, 82 F.4th 1199, 1209 (10th Cir. 2023) (quoting Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015)).
When a defendant asserts qualified immunity, the burden shifts to the plaintiff to
satisfy a strict two-part test demonstrating that the defense is not applicable. Fisher v.
City of Las Cruces, 584 F.3d 888, 893 (10th Cir. 2009). First, viewing the evidence in the
light most favorable to the plaintiff, the plaintiff must demonstrate that a defendant’s

actions violated a constitutional or statutory right. Id. Second, “the plaintiff must show that
the right was clearly established at the time of the alleged unlawful activity.” Id. The Court
may examine the two prongs of qualified immunity in either order. Pearson v. Callahan,
555 U.S. 223, 236 (2009) (holding that judges “should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances of the particular case at hand”).
III. Analysis
A. Claim One: Excessive Force
“[T]he Due Process Clause protects a pretrial detainee from the use of excessive
force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989).

To establish that “the force deliberately used is, constitutionally speaking, ‘excessive,’ . .
. a pretrial detainee must show only that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley, 576 U.S. at 396-97.6 “Objective
reasonableness under Kingsley turns on the ‘facts and circumstances of each particular
case.’” Rowell v. Bd. of Cnty. Comm’rs of Muskogee Cnty., Okla., 978 F.3d 1165, 1171
(10th Cir. 2020) (quoting Kingsley, 576 U.S. at 397) (internal citation omitted). “In
Kingsley, the Supreme Court listed non-exclusive factors that may bear on whether an
officer’s use of force on a pretrial detainee was objectively reasonable: (1) the relationship
between the need for the use of force and the amount of force used, (2) the extent of the
plaintiff’s injury, (3) any effort made by the officer to temper or to limit the amount of force,

(4) the severity of the security problem at issue, (5) the threat reasonably perceived by
the officer, and (6) whether the plaintiff was actively resisting.” Rowell, 978 F.3d at 1171-
72 (quoting Kingsley, 576 U.S. at 397) (internal citations and quotation marks omitted).

6 By contrast, an Eighth Amendment excessive force analysis includes an additional subjective
prong, i.e. “whether the defendant acted with a sufficiently culpable state of mind.” Ullery v.
Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (internal quotation omitted). In their Motion [#41],
Defendants cite to Lopez v. LeMaster, 172 F.3d 756 (10th Cir. 1999) for the proposition that “[i]n
determining whether a plaintiff’s due process rights under the Fourteenth Amendment were
violated, the analysis is identical to that applied in Eighth Amendment cases brought pursuant to
§ 1983.” See Motion [#41] at 11. However, Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)
essentially overruled Lopez as applied to pretrial detainees, as the Tenth Circuit has explicitly
noted. See Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020) (noting that the “previous
statement that the Eighth and Fourteenth Amendment analyses are ‘identical[,]’” as set forth in
Lopez, “is no longer good law after the Supreme Court’s decision in Kingsley[.]”).
The Court examines the Kingsley factors, to the extent applicable, as to Plaintiff’s
excessive force allegations.
1. Defendant Carter
On April 4, 2023, Defendant Carter’s alleged use of force consisted only of one

push, which typically does not rise to the level of a constitutional violation. Am. Compl.
[#20] at 4; see also, e.g., Rowell, 978 F.3d at 1173 (finding that “it was objectively
reasonable for [the officer] to grab [the detainee’s] arm and apply modest forward
pressure to guide him down the hallway”); Medina v. David, No. 14-cv-03037-CBS, 2016
WL 122970, at *5 (D. Colo. Jan. 8, 2016) (stating that, where “[the plaintiff’s] claim of
excessive force concerns one shove[]” into a car during transport, “[t]he court determines
that the claim is not constitutionally cognizable[.]”). Plaintiff does not allege any contextual
detail regarding why Defendant Carter needed to use force, and therefore the Court
cannot determine whether “the force was . . . proportional to the need presented.” Estate
of Booker v. Gomez, 745 F.3d 405, 424 (10th Cir. 2014). However, because the use of

force was so objectively minimal, the Court finds that Plaintiff has failed to state an
excessive force claim against Defendant Carter. Accord Medina, 2016 WL 122970, at *5
(collecting cases which found that a mere push or shove had failed to state an excessive
force claim).
Plaintiff also fails to allege any injury caused by Defendant Carter’s alleged push.
Cf. Johnson v. Kellison, No. 18-cv-02112-RM-KLM, 2020 WL 5748785, at *11 (D. Colo.
Sept. 25, 2020) (recommending summary judgment for defendants because “no
reasonable jury could find that [the defendant’s] use of force was objectively
unreasonable” when “[t]here [was] no evidence of any immediate injury or even of later
injury”); Medina, 2016 WL 122970, at *6 (stating that even though no bright-line rule
requires an excessive force claim to show injury, “alleged injuries reflecting only minimal
force may be insufficient to qualify as constitutionally excessive or overcome the officers’
entitlement to qualified immunity.”) (collecting cases). As Plaintiff alleges neither

objectively excessive use of force nor physical injury caused by Defendant Carter, he fails
to state Fourteenth Amendment claim that overcomes qualified immunity. See, e.g.,
Medina, 2016 WL 122970, at *6. Because Plaintiff has failed to establish a threshold use
of excessive force, the Court declines to examine the remaining Kingsley factors.
Accordingly, the Court recommends that Plaintiff’s Claim One be dismissed
without prejudice as to Plaintiff’s claim that Defendant Carter violated his Fourteenth
Amendment rights. See, e.g., Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190
(10th Cir. 2014) (stating that “pro se parties generally should be given leave to amend”).
2. Defendant McAllister

a. The March 28, 2023 Incident
On March 28, 2023, Defendant McAllister’s alleged use of force also consisted of
a single push, which typically does not rise to the level of a constitutional violation. Am.
Compl. [#20] at 4; see, e.g., Rowell, 978 F.3d at 1173; Medina, 2016 WL 122970, at *5.
Plaintiff does not allege any contextual detail regarding why Defendant McAllister needed
to use force, and therefore the Court cannot determine whether “the force was . . .
proportional to the need presented.” Estate of Booker, 745 F.3d at 424. Again, because
the use of force was so objectively minimal, the Court finds that Plaintiff has failed to state
an excessive force claim against Defendant Carter. Accord Medina, 2016 WL 122970, at
*5.
Plaintiff does not allege any injury caused by Defendant McAllister’s alleged push.
Cf. Johnson, 2020 WL 5748785, at *11; Medina, 2016 WL 122970, at *6 (collecting
cases). Because Plaintiff alleges neither objectively excessive use of force nor physical
injury caused by Defendant McAllister’s March 28, 2023 shove, he fails to state a plausible

Fourteenth Amendment claim that overcomes qualified immunity. See, e.g., Medina, 2016
WL 122970, at *6. Because Plaintiff has failed to establish a threshold use of excessive
force, the Court declines to examine the remaining Kingsley factors.
Accordingly, the Court recommends that Plaintiff’s Claim One be dismissed
without prejudice as to Plaintiff’s claim that Defendant Carter violated his Fourteenth
Amendment rights as to the March 28, 2023 incident.
b. The April 4, 2023 Incident
Plaintiff also alleges that, on April 4, 2023, Defendant McAllister “punched [him] in
the face” and, “[w]hen [Plaintiff] was on [his] back not fighting[,] McAllister kneed [him] in
[the] face two times then placed his knee on [his] face and put his weight in to [sic] it on

[his] face.” Am. Compl. [#20] at 4. Given that, at the time of Defendant McAllister’s alleged
actions, Plaintiff was merely “try[ing] to keep [him]self from falling down,” the Court finds
that Plaintiff has plausibly alleged that the amount of force used was objectively
excessive. Id. Further, Defendant McAllister’s conduct allegedly resulted in significant
injury, including “scratches,” “a bruise on [his] face,” and a “chipped . . . tooth.” Id. at 4-5.
Even under the more exacting Eighth Amendment analysis, the Supreme Court has held
that similar alleged injuries were not de minimis and should have survived dismissal. See,
e.g., Hudson v. McMillian, 503 U.S. 1, 10 (1992) (stating that “[t]he extent of [the plaintiff’s]
injuries,” which included minor bruises, facial swelling, loosened teeth, and a cracked
dental plate, provided “no basis for dismissal of his § 1983 claim.”). Therefore, the Court
finds that the first two Kingsley factors weigh in Plaintiff’s favor.
Given that Plaintiff specifically alleges that Defendant McAllister continued to
assault him “[w]hen [he] was on [his] back not fighting,” the Court may plausibly infer that

Plaintiff was not actively resisting. Am. Compl. [#20] at 4. The Complaint [#20] renders
unclear how long the incident lasted, and the allegations do not demonstrate any effort to
limit the use of force once Plaintiff was subdued. Therefore, to the extent that Defendant
McAllister allegedly escalated the use of force on a defenseless Plaintiff, the Court finds
that the third and sixth Kingsley factors weigh in Plaintiff’s favor.
Finally, Plaintiff’s allegations lack any detail as to why the confrontation occurred
and, thus, the allegations render unclear whether Plaintiff ever posed a threat to
Defendant McAllister or whether Defendant McAllister had a potential security concern
that would justify the use of some force. However, even if Plaintiff did pose a threat to
Defendant McAllister or a security concern precipitating the incident, the Court may

plausibly infer that, once Plaintiff was “on [his] back not fighting,” no apparent threat
existed. Therefore, the Court finds that the fourth and fifth Kingsley factors weigh in favor
of Plaintiff.
Because all the Kingsley factors weigh in Plaintiff’s favor, the Court finds that
Plaintiff has plausibly stated a Fourteenth Amendment excessive force claim against
Defendant McAllister relating to the April 4, 2023 incident. Thus, Plaintiff has satisfied the
first prong of qualified immunity by plausibly alleging a constitutional violation. Moreover,
while discovery may reveal additional information that provides further details about the
incident, the Court finds that the right at issue, as alleged in Plaintiff’s Complaint [#20],
was clearly established at the time of Defendant McAllister’s conduct. See, e.g., Wise, 72
F.4th at 1209-10 (collecting Tenth Circuit cases and stating that it was clearly established
by October 2018 that “striking” and “kneeing a subdued [pretrial detainee] in the face”
where the detainee “posed no immediate security threat” was an objectively unreasonable

use of force); Estate of Booker v. Gomez, 745 F.3d 405, 428 (10th Cir. 2014) (stating that
the “legal norms” relevant to the excessive force claim had been clearly established at
the time of the incident in which a pretrial detainee was “handcuffed, prone on his
stomach, and not resisting while much of the disproportionate use of force occurred”).
Therefore, the Court finds that Defendant McAllister’s assertion of qualified immunity fails
at this stage of the proceedings. Accordingly, the Court recommends that the Motion
[#41] be denied in part as to Plaintiff’s Claim One against Defendant McAllister as to the
alleged April 4, 2023 incident.
B. Claim Two: Punishment of a Pretrial Detainee

In support of his second claim, Plaintiff alleges that Defendant Bonk violated his
Fourteenth Amendment due process rights by placing him “in the hole where [he] had no
contact with any other person for over a month.” Am. Compl. [#20] at 5. Defendants argue
that “Plaintiff provides [the] Court with no well-pled facts showing that being held in some
sort of segregated housing was ‘intended as punishment’ nor that it is ‘unrelated to a
legitimate government objective.’” Motion [#41] at 10 (citing Cordova v. City of
Albuquerque, 816 F.3d 645, 655 n. 5 (10th Cir. 2016)). Defendants further argue that
Plaintiff failed to allege that “Sergeant Bonk (1) had the authority to make decisions
regarding Plaintiff’s housing and (2) made the decision to maintain his housing status in
‘the hole’ for a month.” Id. at 10-11.
In Kingsley, the Supreme Court reiterated that “pretrial detainees (unlike convicted
prisoners) cannot be punished at all[.]” Kingsley, 576 U.S. at 401; see also Bell v. Wolfish,
441 U.S. 520, 535 (1979) (“a detainee may not be punished prior to an adjudication of
guilt in accordance with due process of law”). Thus, “the constitutionality under a due

process analysis of the nature or duration of pretrial detention turns on whether such
detention amounts to ‘punishment’ in the constitutional sense.” Littlefield v. Deland, 641
F.2d 729, 731 (10th Cir. 1981); see also Bell, 441 U.S. at 520, 535 (stating, “[i]n evaluating
the constitutionality of conditions or restrictions of pretrial detention” in the Due Process
context, “the proper inquiry is whether those conditions amount to punishment of the
detainee.”).
To determine whether imposed restrictions are unconstitutional, the Court
considers two questions: (1) whether detention facility officials have an “expressed intent
to punish”; and (2) whether, in the absence of an express intent to punish, the restriction
has “no reasonable relationship to any legitimate governmental objective” and thus

amounts to “unconstitutional punishment.” Jenkins v. O’Neal, No. 21-cv-03403-RM-MDB,
2023 WL 1784226, at *5 (D. Colo. Feb. 6, 2023) (citing Blackmon v. Sutton, 734 F.3d
1237, 1240 (10th Cir. 2013)), recommendation adopted 2024 WL 943442 (D. Colo. Mar.
5, 2024).
“If an act by a prison official, such as placing the detainee in segregation, is done
with an intent to punish, the act constitutes unconstitutional pretrial punishment.” Peoples
v. CCA Det. Ctrs., 422 F.3d 1090, 1106 (10th Cir. 2005). Likewise, “if a restriction or
condition is not reasonably related to a legitimate [governmental] goal—if it is arbitrary or
purposeless—a court permissibly may infer that the purpose of the governmental action
is punishment.” Id. (modification in the original) (quoting Bell, 441 U.S. at 539). However,
“restraints that ‘are reasonably related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional punishment, even if they are
discomforting.’” Id. (quoting Bell, 441 U.S. at 540); see also Bell, 441 U.S. 537 (noting,

“confinement in a facility . . . no matter how modern . . . results in restricting the movement
of a detainee in a manner in which he would not be restricted if he simply were free to
walk the streets pending trial.”). “[N]o process is required if [a pretrial detainee] is placed
in segregation not as punishment but for managerial [including safety] reasons.” Peoples,
422 F.3d at 1106 (quoting Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002)).
In Peoples, the Tenth Circuit affirmed dismissal of a pretrial detainee’s due process
claim arising from his segregation placement because the segregation was not intended
as punishment. 422 F.3d at 1107. Specifically, the segregation began due to the jail’s lack
of bed space in general population and continued because jail officials learned of the
detainee’s prior plot to escape from his previous pretrial detention facility. Id. at 1106-07.

In Littlefield, however, the Tenth Circuit affirmed a lower court’s finding of a due
process violation arising from a mentally ill pretrial detainee’s 56-day placement—without
notice, a hearing, meaningful review, or legitimate governmental purpose—in “a solitary
cell long used by the county to punish disorderly pretrial detainees and to segregate
prisoners with severe mental disorders.” 641 F.2d at 730-31. The detainee was housed
in a cell with no windows, interior lights, bunk, floor covering, or toilet except for a hole in
the floor; he was deprived of clothing and bedding; and he had no opportunities to
recreate outside his cell or to possess reading or writing materials. Id. The detainee
asserted that “this kind and length of confinement without hearing deprived him of due
process of law and that it subjected him to cruel and unusual punishment.” Id. at 731.
Though the district court found no clear evidence of jail officials’ intent to punish
the plaintiff, it found that “the condition and manner in which [the plaintiff] was maintained

could hardly have been any worse than if he were being punished for adjudicated
infractions of a serious nature.” Id. (quoting district court’s ruling). Additionally, the district
court reasoned that that the “extreme deprivations” which the plaintiff endured for 56 days
were “partly retributive, partly precautionary,” “unreasonably degrading and inhumane,”
“masquerade[d] as essential custodial detention” and, therefore, were excessive in
relation to the purposes of pretrial detention Id. In its affirmance, the Tenth Circuit held
that “to hold a pretrial detainee under conditions of detention this extreme for such an
excessive period as fifty-six days is punishment and, absent a determination of guilt,
cannot be imposed in accordance with the due process clause of the fourteenth
amendment.” Id. at 732 (citing Bell, 441 U.S. 520).

Here, Plaintiff alleges almost no detail regarding why Defendant Bonk “went and
had [Plaintiff] placed in the hole,” except that it occurred after the incident with Defendant
McAllister, after Plaintiff told Defendant Bonk that it was “his deputies that assaulted
[Plaintiff].” Am. Compl. [#20] at 5. While the Court must take all factual allegations as true,
it is not required to draw unsupported legal conclusions in his favor (for example, that the
decision to put him “in the hole” was punitive in a constitutional sense) or to make
inferences based on facts not alleged.
The Court finds that Plaintiff’s very minimal allegations are insufficient to survive a
motion to dismiss. Plaintiff’s allegations fall far short of the bare minimum other courts
have deemed sufficient to survive a motion to dismiss. For example, in Jenkins v. O’Neal,
No. 21-cv-03403-RM-MDB, 2023 WL 1784226, *6-*7 (D. Colo. Feb. 6, 2023),
recommendation adopted, 2024 WL 943442 (D. Colo. Mar. 5, 2024), the court denied a
motion to dismiss a due process claim where: the plaintiff allegedly “spent approximately

280 days in solitary confinement” as a pretrial detainee, where he was confined in his cell
for 23 hours a day with no access to the outdoors; the defendant allegedly acted with
intent to punish and provided no opportunity for the plaintiff to be heard or to seek review;
and another defendant extended the confinement by 60 days without justification. In
rejecting the motion to dismiss, the court noted that at the summary judgment stage, the
“[d]efendants will have ample opportunity to present factual evidence refuting [the]
allegations and presenting . . . evidence tending to show [the] [p]laintiff was confined
based on a legitimate government interest and not to punish.” 2023 WL 1784226 at *7.
Plaintiff’s allegations are also deficient when compared to the allegations in Meek
v. Koonce, No. 14-cv-013356-MSK-KLM, 2015 WL 4944076 (D. Colo. Aug. 20, 2015). In

Meek, the plaintiff alleged that, as a pretrial detainee, he was placed in administrative
segregation without notice and despite having been “cleared of any wrong doing [sic].”
2015 WL 4944076 at *1, *5. He complained that he was confined to an unsanitary cell for
23 hours per day, without access to sunlight, socialization, and mental and physical
stimulation. Id. at *1. The plaintiff further alleged that he was exposed to bright lights 24
hours per day. Id. Based on those allegations, the court determined that the plaintiff had
alleged just enough for it “to infer . . . that the placement was purposeless.” Id. (denying
motion to dismiss due process claim).
Plaintiff’s allegations are also deficient in comparison to those alleged in Sessions
v. Clements, No. 14-cv-02406-PAB-KLM, 2016 WL 820978 (D. Colo. Jan. 21, 2016),
recommendation adopted, 2016 WL 814715 (D. Colo. Mar. 1, 2016). In Sessions, the
plaintiff alleged that, as a pretrial detainee, he was placed in segregation “without any

notice of the reason” for nearly nine months, and he believed he was segregated
“because of pending criminal charges against him involving sexual assault of a child.”
2016 WL 820978, at *2, *7. Based on those allegations, the court determined that it may
“infer . . . that the placement was purposeless or impermissibly imposed as punishment”
and concluded that the plaintiff stated an actionable procedural due process claim. Id. at
*7. In sum, unlike in Meek or Sessions, Plaintiff’s allegations render the Court unable to
infer that he was placed in segregation as punishment.
Additionally, Plaintiff has not established that his right as a pretrial detainee to be
free from administrative segregation “for over a month” after an altercation with jail staff
was clearly established on April 4, 2023, when the alleged events occurred. While the

Tenth Circuit addressed the unconstitutionality of a pretrial detainee’s solitary
confinement in Littlefield v. Deland, 641 F.2d 729, 731 (10th Cir. 1981), the confinement
lasted for 56 days, during which time the plaintiff had no opportunities to be heard or to
have a meaningful review, and he was housed in austere conditions which included a
lack of clothing, lights, windows, or a toilet (other than a hole in the floor). Thus, to the
extent that Littlefield clearly establishes a right for detainees to be free from harsh
conditions of confinement, that case does not sufficiently put the defendants on notice
that segregation “for over a month”—after an altercation with jail staff—with “no contact
with any other person” amounts to a constitutional deprivation. Accordingly, even if
Plaintiff plausibly alleged that Defendant Bonk violated his Fourteenth Amendment rights,
the Court cannot find that Defendant Bonk’s alleged conduct violated clearly established
law. Therefore, the Court finds that Defendant Bonk is entitled to qualified immunity.
Accordingly, the Court recommends that Plaintiff’s Claim Two be dismissed

without prejudice. Knight, 749 F.3d at 1190 (stating that “pro se parties generally should
be given leave to amend”).
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that Defendants’ Motion [#41] be GRANTED in
part and DENIED in part, as outlined above.
IT IS FURTHER RECOMMENDED that Plaintiff’s Claim One be DISMISSED
WITHOUT PREJUDICE as to Defendant Carter and as to the March 28, 2023 alleged
incident involving Defendant McAllister.
IT IS FURTHER RECOMMENDED that Plaintiff’s Claim Two be DISMISSED

WITHOUT PREJUDICE.7
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may serve and file specific written objections to the proposed findings and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and

7 Should this Recommendation be adopted in full, only Claim One will remain, to the extent Plaintiff
alleges that Defendant McAllister used excessive force against him on April 4, 2023, and all claims
against Defendants Carter and Bonk will be dismissed.
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. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court's attention on the factual and legal issues that are truly in dispute.” /d. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).

Dated: August 19, 2024 BY THE COURT:

Kathryn A. Starnella
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640965. Public record. Not legal advice.