Chrisco v. Raemisch
| Decision Date | 20 February 2018 |
| Docket Number | Civil Action No. 17-cv-01036-PAB-MEH |
| Parties | LUKE IRVIN CHRISCO, Plaintiff, v. RICHARD F. RAEMISCH, Executive Director, Colorado Department of Corrections, CAPTAIN GALLARDO, SCCF, MS. KRAKOW, MHO, SCCF, C.O. ESPINOSA, SCCF, DR. RICHARD MALEY, SCCF MHP, DONALD GIBSON, SCCF MHP, MS. SPEARING, SCCF MHP, LT. LYNN EDWARD TRAVIS, SCCF, SGT. ULYSSES MONTOYA, SCCF, SGT. ESLINGER, SCCF, C.O. CORTEZ, SCCF, C.O. COLLINS, SCCF, C.O. SIERRA, SCCF, C.O. KEYS, SCCF, PAMELA JONES, LPN SCCF, SGT. SHOFFLER, SCCF, and LT. JOHN DOE, SCCF, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Luke Irvin Chrisco ("Plaintiff") proceeds pro se in this litigation and asserts seventeen claims against the various Defendants. In response, Defendants move to dismiss the majority of Plaintiff's claims. Finding that Plaintiff fails to state certain claims and that this Court lacks jurisdiction to hear the remainder, the Court respectfully recommends that the Honorable Philip A. Brimmer grant the Motion.
Plaintiff is incarcerated at San Carlos Correctional Facility ("SCCF") in the Colorado Department of Corrections ("CDOC"). Compl. 2, ECF No. 1. While Plaintiff's action was initiated in this court on April 26, 2017, see id. at 1, he deposited the Complaint within the SCCF mail system on April 24, 2017, id. Attach. 1, at 2, ECF No. 1-1, which is relevant to a dispute concerning the applicable statute of limitations. All factual allegations in the Complaint are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff's first claim for relief arises from an incident that occurred on April 6, 2015. At approximately 11:00 p.m., Defendants Gallardo and Doe entered Plaintiff's cell to physically remove Plaintiff, because he had failed to uncover his cell window during shift change. Compl. ¶ 1. Plaintiff did not cooperate and instead protested by lying face-down on the floor. Id. ¶ 2. In response, Gallardo and Doe "introduced" "Oleam Resin military-grade foam gel" into Plaintiff's cell, and onto Plaintiff, through the cell tray slot. Id. After being hit with the gel, Plaintiff quickly cooperated, and the Defendants took him to a shower where he was able to rinse off the gel. Id. ¶ 3. However, after the shower, the "cell extraction team," under the direction of Gallardo and Doe, continued to physically manhandle Plaintiff while wearing gloves that were contaminated with the gel. Id. ¶ 4. This physical contact reapplied the gel onto Plaintiff. Id. Plaintiff protested about being exposed to the gel again but was told to be silent. Id. ¶ 5. Soon, the gel began to burn. Id. ¶ 6.
Plaintiff was then transferred to a cell that had been prepared by Defendant Espinosa, at the direction of Gallardo and Doe, such that the sink was turned off and the toilet did not work. Id. ¶ 7. There, Plaintiff attempted to rinse off the gel using the water in the toilet, id. ¶¶ 8, 10, but thiseventually compounded the problem as the toilet water became contaminated with the gel, id. ¶ 10. Plaintiff begged the unit guard Doxdettler to turn the water on, and, after forty-five minutes, Doxdettler agreed. Id. ¶ 11. However, because the operation of a separate valve unknown to Doxdettler was necessary to activate the cold water, he was only able to turn on the hot water. Id. ¶ 11. Plaintiff used the hot water to attempt to rinse off the gel, but doing so caused great pain. Id. ¶¶ 12-13. Doxdettler notified Gallardo and Doe about Plaintiff's condition, but they refused to allow Plaintiff a shower or to activate the cold water. Id. ¶ 13. Gallardo instructed Doxdettler to ignore Plaintiff's continued requests for attention. Id. ¶ 15.
Shortly thereafter, Plaintiff's nose began to bleed, and Plaintiff used his blood to write "NEED COLD WATER NOW" on the wall of the cell. Id. ¶ 16. This attracted Doxdettler's attention, and he called for a nurse. Id. ¶¶ 16-17. The nurse called for Defendant Krakow. Id. ¶ 17. Krakow "had" Plaintiff placed in restraints and had "mitts" put on his hands. Id. ¶ 18. These restraints caused Plaintiff great pain. Id. ¶ 19. Plaintiff was left in the restraints for three days, during which he continued to experience great pain in his hands. Id. ¶ 21. Plaintiff claims this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.
Plaintiff's second claim arises from events that began on April 15, 2015. Id. ¶ 26. On that date, Defendant Maley ordered Plaintiff be placed on a "Mental Health Watch" ("MHW") and additionally put him in ambulatory metal shackles and belly restraints, with his hands attached in cuffs at the waist. Id. ¶¶ 26-27. These restraints made it nearly impossible for Plaintiff to sleep. Id. ¶ 28. The restraints also caused wounds on Plaintiff's wrists and ankles. Id. ¶ 31. During the MHW, Plaintiff was subjected to "restraint checks" every two hours. Id. ¶ 29. During a restraint check, Plaintiff was removed from his cell by threat of force and shoved into a wall while a nurseexamined his restraints to ensure they were not too tight. Id. ¶ 29. Defendants Spearing and Gibson participated in conducting the restraint checks. Id. ¶ 30. Plaintiff alleges the purpose of the restraint checks was to deprive him of sleep. Id. Plaintiff alleges the goal of the MHW was to break his will to do legal work. Id. ¶¶ 27, 32. Plaintiff claims these checks violated his Eighth Amendment right to be free from cruel and unusual punishment.
Plaintiff's third claim arises from conduct that occurred during an MHW from April 19 through April 24, 2015. Id. ¶ 36. During this time, Defendant Travis ordered Plaintiff's hands be secured behind his back (rather than at his sides) while in ambulatory restraints daily from 6 a.m. to 2 p.m. Id. Plaintiff refers to being secured in this manner as "hog tied." Id. At the end of Travis' shift, someone else returned Plaintiff's hands to a secured position at his sides. Id. ¶ 37. Plaintiff claims this conduct violated his Eighth Amendment right to be free from cruel and unusual punishment.
Plaintiff's fourth claim arises from the identical conduct. Plaintiff alleges Defendant Travis knew Plaintiff had filed several grievances against SCCF and its law library. Id. ¶ 40. Plaintiff claims Travis had a retaliatory motive when he ordered Plaintiff hog tied during the April 2015 MHW. Id. ¶¶ 42-43. Plaintiff alleges he began to suffer neuropraxia of the wrists and hands as a result of the being hog tied. Id. ¶ 44. He also alleges he had "PTSD-like symptoms" in which he would have nightmares and flashbacks about the abuse. Id. Plaintiff alleges Travis violated the First Amendment by retaliating against Plaintiff's use of process.
Plaintiff's fifth claim arises from an incident that occurred on April 17, 2015. Id. ¶ 46. On that date, Defendant Montoya, Defendant Eslinger, and C.O. Andrade entered Plaintiff's cell while he was attempting to sleep. Id. Montoya and Andrade held Plaintiff down with a plastic shield, andMontoya ordered Eslinger to begin "smashing/forcing" his tazer into Plaintiff's right shin, where he had scar tissue from a previous injury. Id. ¶¶ 46-47. Eslinger also put his knee into Plaintiff's shin in an attempt to cause additional pain. Id. ¶ 48. Plaintiff continues to experience pain in his leg. Id. ¶ 49. Plaintiff alleges this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.
Plaintiff's sixth claim arises from conduct that occurred on April 21, 2015. Id. ¶ 54. On that date, Defendants Cortez, Collins, and Sierra entered Plaintiff's cell and, while he was in ambulatory restraints, threw him into the concrete bunk. Id. ¶ 55. Collins then "pummeled" Plaintiff in the side and back, Sierra stomped on Plaintiff's leg shackles, and Cortez elbowed Plaintiff in the spine and ribs. Id. Plaintiff did nothing to resist the beating, because his arms were chained to his sides by the restraints. Id. ¶ 56. Plaintiff alleges this incident violated his Eighth Amendment right to be free from cruel and unusual punishment.
Plaintiff's seventh claim arises from events that occurred on April 25, 2015. Id. ¶ 59. On that date, Defendant Keys, Defendant Eslinger, and C.O. Downard completed a restraint check in Plaintiff's cell. Id. As they were leaving, Plaintiff asked Keys, "What's your name?" Id. ¶ 60. Keys responded by reentering the cell and shoving Plaintiff with both hands in the chest, pushing Plaintiff backward. Id. ¶ 61. Plaintiff stumbled and hit his head on the concrete bunk. Id. ¶ 62. Plaintiff lost consciousness and suffered a quarter-sized hematoma on the top of his head. Id. ¶¶ 62-63. He awoke to Keys, Eslinger, Downard, and Defendant Jones laughing at his injuries. Id. ¶ 62. Defendants then left Plaintiff's cell, and he spent the next ten minutes requesting a nurse. Id. ¶¶ 64-65. Soon, guards summoned Jones back to Plaintiff's cell. Id. ¶ 65. Jones examined Plaintiff and confirmed he had abrasions and a bump on his head. Id. Plaintiff requested pain medication,but Jones refused to provide any. Id. Plaintiff alleges Keys' conduct violated his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff additionally alleges that Jones' decision to deny him medical care violated his Eighth Amendment right.
Plaintiff's eighth claim arises from an incident that occurred on April 23, 2015. Id. ¶ 70. On that date, Defendants Shoffler and Montoya entered Plaintiff's cell to deliver his breakfast. Id. After two minutes, they decided that they would not allow him to finish his breakfast. Id. ¶ 70. Plaintiff then (in ambulatory restraints) grabbed a pancake in each hand. Id. Shoffler ordered Plaintiff to "drop the pancakes." Id. ¶ 71. Plaintiff refused. Id. Shoffler and Montoya then employed physical joint-manipulation techniques to remove the...
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