Perrian v. Coons

• Decision Date: 31 March 2015
• Docket Number: Civil Action No. 13-cv-02951-KLM
• Parties: RANDY PERRIAN, Plaintiff, v. SCF SERGEANT BUSTER COONS, in his individual and official capacities, SCF SERGEANT ROBERT BROWN, in his individual and official capacities, LARRY GRAHAM, in his individual and official capacities, TOM CLEMENTS, in his individual and official capacities, JOHN CHAPDELAINE, in his individual and official capacities, SCF MAJOR TIM USRY, in his individual and official capacities, LIEUTENANT ALLEN HARMS, in his individual and official capacities, SCF COPD BOARD MEMBER KIM WOOD, in her individual and official capacities, SCF COPD BOARD MEMBER JIM LUECK, in his individual and official capacities, SCF LIEUTENANT H.J. HENDERSON, in his individual and official capacities, UNKNOWN SCF ADMINISTRATION HEAD, Defendants.
• Court: U.S. District Court — District of Colorado

RANDY PERRIAN, Plaintiff, v. SCF SERGEANT BUSTER COONS, in his individual and official capacities,SCF SERGEANT ROBERT BROWN, in his individual and official capacities,LARRY GRAHAM, in his individual and official capacities,TOM CLEMENTS, in his individual and official capacities,JOHN CHAPDELAINE, in his individual and official capacities,SCF MAJOR TIM USRY, in his individual and official capacities,LIEUTENANT ALLEN HARMS, in his individual and official capacities,SCF COPD BOARD MEMBER KIM WOOD, in her individual and official capacities,SCF COPD BOARD MEMBER JIM LUECK, in his individual and official capacities,SCF LIEUTENANT H.J. HENDERSON, in his individual and official capacities,UNKNOWN SCF ADMINISTRATION HEAD, Defendants.

Civil Action No. 13-cv-02951-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 31, 2015

ORDER

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant's Motion to Dismiss [#24]¹ (the "Motion"). Plaintiff, who proceeds in this matter as a pro se litigant,² filed a Response [#28]in opposition to the Motion. Defendants have not filed a reply and their time to do so has elapsed. See D.C.COLO.LCivR 7.1(d). The Court has reviewed the Motion, the Response, the entire case file, and is sufficiently advised in the premises.³ For the reasons set forth below, the Motion [#24] is GRANTED in part and DENIED in part.

I. Summary of the Case

A. Procedural Background

On October 28, 2013, Plaintiff, an inmate at Sterling Correctional Facility ("SCF"), filed his Complaint pursuant to 42 U.S.C. § 1983 alleging that he was subjected to cruel and unusual punishment in violation of his Eighth Amendment rights regarding an incident in the prison kitchen, and that he experienced retaliation in violation of his First Amendment rights for reporting the incident. See Compl. at 9-15. On November 5, 2013, the Court noted that Plaintiff's Complaint was "unnecessarily verbose and disorganized" and directed him to file an amended complaint that identified, "clearly and concisely and in plain language, who he is suing, the specific claims he is asserting, the specific facts that support each asserted claim, against which defendant or defendants he is asserting each claim, and what each defendant did that allegedly violated his rights." Order Directing Plaintiff to File Amended Complaint [#6] at 3. Further, the Court noted that Plaintiff's Complaint failed to allege facts demonstrating that each of the named defendants personally participated in the asserted constitutional violations and directed him to file an amended complaint that "alleges specific facts demonstrating how each named defendant personally participated in the asserted constitutional violations." Id. at 5. On December 12, 2013, Plaintiff filed hisAmended Complaint [#9], which is the operative pleading in this case.

B. Factual Allegations

Plaintiff's Amended Complaint lists two claims. Am. Compl. [#9] at 8-13. Plaintiff's first claim is titled "Defendants Brown and Coons Violated Plaintiff's 8th Amendment Right to Remain Free From Excessive Use of Force." Id. at 8. Plaintiff alleges that on October 26, 2011 while he was working in the kitchen at SCF, an incident took place during which Defendant Buster Coons ("Coons") put him in handcuffs and applied unnecessary force to his right wrist, which had been previously injured, causing Plaintiff to cry out in pain. Id. Plaintiff alleges that Defendant Coons and Defendant Robert Brown ("Brown") then slammed Plaintiff against the wall, "wrenching his right wrist upward painfully." Id. at 9. Plaintiff allegedly told Defendants Coons and Brown that the right handcuff was too tight, and another officer, Captain Brooks, directed Defendants Brown and Coons to loosen the cuffs. Id. Plaintiff alleges that Defendants Coons and Brown exerted excessive force in applying a second set of handcuffs so they could remove the first set of handcuffs. Id. Plaintiff maintains that he was then escorted to the medical center where an examination revealed that his right wrist was bleeding from the application of the first set of handcuffs. Id. Plaintiff avers that the grievance he filed complaining about this incident was denied and that he wrote a letter to officials at the Colorado Department of Corrections ("CDOC") regarding the incident but that no official action was taken by the CDOC. Id. Plaintiff further alleges that Defendant Larry Graham ("Graham"), a CDOC investigator, was told to investigate the use of force claim and never conducted an investigation, thus, "through these actions Defendant Graham intentionally covered up the excessive use of force." Id. at 10. The Court will treat this claim as an Eighth Amendment excessive force claimagainst Defendants Coons, Brown, and Graham.⁴

Plaintiff's second claim is titled "Retaliation for Exercise of First Amendment Rights of Free Speech and to Petition the Government for Redress of Grievances." Id. Plaintiff alleges that after filing his grievance regarding the incident with Defendants Coons and Brown, Plaintiff sent letters to various departments within SCF and the CDOC requesting assistance in obtaining video of the incident and investigating his claim. Id. Plaintiff maintains that the matter was turned over to Defendant John Chapdelaine ("Chapdelaine"), an associate warden at SCF at the time, and Defendant Major Tim Usry ("Usry"). Id at 11. Plaintiff alleges that Defendant Chapdelaine ordered Defendant Lieutenant H.J. Henderson ("Henderson") to file Colorado Code of Penal Discipline ("COPD") charges against Plaintiff. Id. Plaintiff further alleges that "Defendant Usry responded by advocating for [Plaintiff] to face consequences for the complaint, and by working with Defendant Graham to cover up the excessive use of force (see Claim One above)." Id. Plaintiff alleges that Defendant Chapdelaine's and Defendant Usry's actions were "direct retaliation against [Plaintiff] for exercising his First Amendment right of Free Speech and petition for redress of grievances." Id.

On December 28, 2011, Plaintiff alleges he was served with a CDOC Notice of Charges alleging that he had committed an infraction for "False Reporting to Authorities" under Rule 21 of the COPD. Id. The notice allegedly explained that Plaintiff's claims of excessive force included in his grievance filed after the incident and his other statements requesting assistance investigating the incident were misleading because "staff were taking appropriate actions to mitigate the situation that [Plaintiff] calls excessive." Id. The hearingfor these charges was held on January 10, 2012 before a panel of three hearing officers: Defendant Lieutenant Allen Harms ("Harms"), Defendant Lieutenant Kim Wood ("Wood"), and Defendant Lieutenant Jim Lueck ("Lueck"). Defendant Henderson was the prosecuting officer. Id. at 12. Defendant Henderson allegedly argued that the force applied by Defendants Coons and Brown was not excessive, while Plaintiff testified that he honestly believed the force used was excessive because it was extremely painful and left a scar on his wrist. Id. At the conclusion of the hearing, the panel found Plaintiff guilty of false reporting by a vote of two to one. Id. As a result, Plaintiff was punished with twenty days punitive segregation and thirty days loss of good time. Id. According to Plaintiff, as a result of the segregation, he lost his job in the kitchen, and was also placed in a restrictive "Intensive Management Program" after completing the segregation. Id.

On or about January 18, 2012, Plaintiff allegedly appealed his COPD conviction of false reporting, and the conviction was upheld by an "Unknown Administrative Head," who "also violated [Plaintiff's] right to be free from retaliation for the exercise of his right to Free Speech and redress of grievances." Id. at 13. In May 2012, Plaintiff allegedly appealed his conviction to the Logan County District Court by filing a complaint pursuant to Colo. R. Civ. P. 106, and as a result the CDOC sent Plaintiff an expungement order for the COPD false reporting charge. Id. The Court will treat this claim as a First Amendment retaliation claim against Defendants Chapdelaine, Usry, Henderson, Harms, Wood, Lueck, and Unknown Administrative Head.

Plaintiff requests declaratory relief for both claims, injunctive relief for the First Amendment claim, "compensatory damages in the amount of $25.000 [sic] thousand dollar[s] against all defendants jointly and severally," and "punitive damages in the amountof $25.000 [sic] thousand dollar[s] against all defendant's, [sic] jointly and severally." Id. at 14.

C. The Motion

Defendants argue that Plaintiff's claims should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim on which relief may be granted. Motion [#24] at 2-3. Defendants argue that to the extent that they are being sued in their official capacities, they are "immune from claims for monetary and declaratory relief under the Eleventh Amendment," because the Eleventh Amendment bars a suit brought in federal court by citizens of a state against the state or its agencies and constitutes a bar to the exercise of federal subject matter jurisdiction. Id. at 4. Defendants also argue that Plaintiff's first claim of excessive force in violation of the Eighth Amendment is barred by the application of the statute of limitations. Id. at 5. Defendants maintain that because Colorado provides for a two-year statute of limitations for actions brought under § 1983, and Plaintiff's first claim stems from an October 26, 2011 incident, Plaintiff failed to file his claim within the applicable statute of limitations period of two years when he filed this action on October 28, 2013. Id. at 6. Additionally, Defendants argue that Plaintiff's Eighth Amendment claim for excessive force fails to state a claim on which relief may be granted because "the force used by Defendants in...