IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Case No. 08-cv-00010-EWN-BNB

SCOTT ANTHONY GOMEZ, JR.,

Plaintiff,

v.

PUEBLO COUNTY, by and through the PUEBLO COUNTY BOARD OF COUNTYCOMMISSIONERS;KIRK M. TAYLOR, Pueblo County Sheriff;DAN CORSENTINO, former Pueblo County Sheriff;J.R. HALL;MARYANN STUART;MARK LIGHTCAP;ALLEN MEDINA;DOUGLAS SYKES;FRANK MORALES; andJOHN and JANE DOES 1-10,

Defendants.______________________________________________________________________

COMBINED MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT______________________________________________________________________________

Defendants PUEBLO COUNTY, by and through the PUEBLO COUNTY BOARD OF

COUNTY COMMISSIONERS; KIRK M. TAYLOR, Pueblo County Sheriff; DAN

CORSENTINO, former Pueblo County Sheriff; J. R. HALL; MARYANN STUART; MARK

LIGHTCAP; ALLEN MEDINA; DOUGLAS SYKES; and FRANK MORALES submit this

motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and for summary

judgment pursuant to Fed. R. Civ. P. 56. In support thereof, Defendants state as follows:

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NATURE OF THE CASE

Plaintiff, SCOTT ANTHONY GOMEZ, JR., filed his complaint in this matter on

January 3, 2008. Plaintiff named as defendants the PUEBLO COUNTY BOARD OF

COUNTY COMMISSIONERS (“Pueblo County”); KIRK TAYLOR (“Taylor”) the current

Pueblo County Sheriff; DAN CORSENTINO (“Corsentino”), the former Pueblo County

Sheriff; and Sheriff’s officers and/or deputies J.R. HALL (“Hall”), MARYANN STUART

(“Stuart”), MARK LIGHTCAP (“Lightcap”), ALLEN MEDINA (“Medina”), DOUGLAS SYKES

(“Sykes”), and FRANK MORALES (“Morales”). Plaintiff also named John and Jane Does

1-10 as defendants.

Plaintiff sets out nine claims for relief in the complaint. The complaint does not, in

most instances, state with particularity which claims are alleged against which defendants.

Plaintiff simply states that these claims are against “Defendants” generally. Additionally,

as discussed in more detail within this motion, Plaintiff provides little description of the

specific conduct alleged against the individual defendants. The nine claims for relief are

summarized as follows:

Claim for Relief Description Claim Against

First 42 U.S.C. § 1983-based claim foruse of excessive force (no specificconstitutional provision cited)

“Defendants”

Second 42 U.S.C. § 1983-based claim forconspiracy to violate civil rights

“Defendants”

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1 Although not relevant to the arguments herein, the beginning date forCorsentino’s term as sheriff was much earlier than August 2006. The last date ofCorsentino’s term as sheriff is correctly stated.

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Third 42 U.S.C. § 1983-based claim forviolation of Fourth, Fifth, Eighth,and Fourteenth Amendment rights,including policy and practice ofcounty to allow and/or conceal useof excessive force

“Defendants” Pueblo Countyregarding practice and policyclaim

Fourth “Constitutional” failure to train andsupervise

Corsentino and Taylor, intheir individual and officialcapacities

Fifth assault and battery Medina and John Doe“Defendants”

Sixth intentional infliction of emotionaldistress

Medina and John Doe“Defendants”

Seventh malicious abuse of process “Defendants”

Eighth negligence “Defendants” and Hall,individually and in his officialcapacity

Ninth respondeat superior Pueblo County

In the prayer, Plaintiff seeks, in part, “declaratory and other injunctive and/or

equitable relief,” compensatory and consequential damages, punitive damages, and

attorney fees.

FACTS

A. Factual Allegations in the Complaint.

Plaintiff’s substantive factual allegations set out in the complaint are as follows:

1. “Defendant Dan Corsentino . . . was the Pueblo County Sheriff between

August of 2006 and January 8, 2007. . . .” Complaint ¶ 3.1

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2. Taylor began his term as sheriff on or about January 8, 2007. Complaint ¶

4.

3. Hall, Stuart, Lightcap, Medina, Sykes, and Morales were all duly appointed

and acting officers of the Sheriff’s Department of Pueblo County acting within the course

and scope of their employment. Complaint ¶ 5.

4. Plaintiff was an inmate at the Pueblo County Jail (“Jail”) being held on a

parole violation. Complaint ¶¶ 11-12.

5. Plaintiff was “assaulted and injured by Defendant Allen Medina” and other jail

personnel. This included use of pepper spray and a taser and beating and kicking Plaintiff.

Complaint ¶ 13.

6. Plaintiff escaped from the Jail on November 22, 2006, and was captured two

days later. Complaint ¶ 14.

7. Medina falsely accused Plaintiff of inciting a riot to cover up his conduct.

Complaint ¶ 20.

8. During the week prior to January 10, 2007, Plaintiff worked on an escape

plan including melting material on a ceiling tile in the shower with a candle. Complaint ¶ 22.

On January 9, 2007, Morales found a candle in the shower but did not follow up to discover

the escape plan. Complaint ¶ 23.

9. On January 10, 2007, Sykes left the Jail section in which Plaintiff was

assigned unattended for an hour. During that time, Plaintiff and an accomplice escaped

through the shower area to the Jail roof. Complaint ¶ 26. Plaintiff fell, sustaining injuries

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while attempting to descend the roof. Complaint ¶ 27. Plaintiff was found by Lightcap who

called for medical help. Complaint ¶ 27.

10. Defendants knew Plaintiff had a propensity to escape and should have taken

more precautions to prevent the escape. Complaint ¶ 84.

B. Statement of Undisputed Material Facts for Purposes of SummaryJudgment Argument.

11. The Pueblo County Jail has adopted a policy with respect to inmate

grievances. See affidavit of Pueblo County Sheriff’s Office Detentions Bureau Chief

Darlene Alcala, attached hereto as EXHIBIT A-1.

12. This policy is provided to the inmates in the Inmate Informational Handbook,

and states as follows:

GRIEVANCE: INMATES ARE PROHIBITED BY FEDERALLAW TO FILE ANY LAWSUITS UNTIL THEY HAVEEXHAUSTED ALL ADMINISTRATIVE REMEDIES. If youhave a complaint regarding conditions or actions against you,you must first try and resolve the grievance informally. If youfail to resolve it at that level, you may submit a writtengrievance, but it must be received within 10 days of the date ofoccurrence. Your grievance must be detailed in writing on akite. If you do not agree with the reply you receive you mayappeal to the next higher in the chain of command, goingthrough the floor officers, sergeants, commanders, assistantsheriff and finally the sheriff. If you wish to file a grievanceagainst an officer, your kite should go to the officer’simmediate supervisor.

See excerpt from Inmate Informational Handbook, attached to EXHIBIT A-1 as ALCALA

AFFIDAVIT EXHIBIT 1 (emphasis in original).

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13. During his stay at the Jail, Plaintiff filed two grievances. See EXHIBIT A-1.

14. Plaintiff’s first grievance is dated October 30, 2006, and relates his frustration

with being placed in administrative segregation. See grievance dated October 30, 2006,

attached to EXHIBIT A-1 as ALCALA AFFIDAVIT EXHIBIT 2.

15. Plaintiff’s second grievance is dated November 5, 2006, and also relates his

frustration with being in administrative segregation. See grievance dated November 5,

2006, attached to EXHIBIT A-1 as ALCALA AFFIDAVIT EXHIBIT 3.

16. Plaintiff did not file appeals to either of these grievances. See EXHIBIT A-1.

STANDARD OF REVIEW

A. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1).

A motion to dismiss for lack of subject matter jurisdiction is considered under Fed.

R. Civ. P. 12(b)(1). Such a motion must be determined from factual allegations contained

in the complaint, “without regard to mere conclusionary allegations of jurisdiction.”

Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). However, if the moving party

attacks the plaintiff’s factual assertions as to subject matter jurisdiction, a court may receive

evidence pertaining to the motion. See Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221

(10th Cir. 2001). The consideration of material outside the pleadings does not convert to

the motion to one for summary judgment. See id.

A court’s dismissal for lack of subject matter jurisdiction is reviewed de novo, and

findings of jurisdictional facts are reviewed for clear error. See id.

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B. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6).

Motions to dismiss for failure to state a claim are considered under Fed. R. Civ. P.

12(b)(6). The standard for review under Fed. R. Civ. P. 12(b)(6) is whether, taking the

facts as pled as true, Plaintiff’s claim can be said to state a claim as a matter of law. See

Maez v. Mountain States Telephone and Telegraph, Inc., 54 F.3d 1488, 1496 (10th Cir.

1995). “‘The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter

of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is

true.’” Brin v. Kansas, 101 F.Supp.2d 1343, 1346 (D. Kan. 2000), quoting Mayer v. Mylod,

988 F.2d 635, 638 (6th Cir. 1993). While a plaintiff is not required to precisely state in the

complaint each element of the claim, “[a] court may not assume that a plaintiff can prove

facts that it has not alleged. . . .” Leprino Foods Co. v. United States, 105 F.Supp.2d 1161,

1162 (D. Colo. 2000), citing Associated General Contractors of California, Inc. v. California

State Council of Carpenters, 459 U.S. 519, 526 (1983). Rather, “a plaintiff must ‘set forth

factual allegations, either direct or inferential, respecting each material element necessary

to sustain recovery under some actionable legal theory.’” Id. at 1162, quoting Gooley v.

Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988).

C. MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56.

“To defeat a summary judgment motion, [the plaintiff] would have to present

evidence establishing a reasonable inference the employer’s proffered, nondiscriminatory

explanation is pretextual.” Meredith v. Beech Aircraft Corp., 18 F.3d 890, 897 (10th Cir.

1994). After each party has met their initial burdens, and if the plaintiff attempts to

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2 Plaintiff’s ninth claim for relief for respondeat superior liability is notsufficiently clear to determine if it is based on just state claims or both state and federalclaims. To the extent that the ninth claim for relief also alleges respondeat superior claimson the basis of federal claims, such claims are unavailable as a theory under 42 U.S.C. §1983. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (“there is no concept ofstrict supervisor liability under § 1983”).

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demonstrate that defendants’ explanation is a pretext, the court must decide, “‘which

party’s explanation of the employer’s motivation it believes.’” Love v. RE/MAX of America,

Inc., 738 F.2d 383, 386 (10th Cir. 1984) (quoting U.S. Parcel Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 716 (1983)), see also Berry v. Stevinson Chevrolet, 74 F.3d 980,

987 (10th Cir. 1996).

Summary judgment is appropriate for a defendant if a plaintiff fails to make a

sufficient showing of an essential element of his case as to which he has the burden of

proof. Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994). The “mere existence

of some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine issue

of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis

in original).

LEGAL ARGUMENT AND AUTHORITY

I. PLAINTIFF’S STATE LAW TORT CLAIMS FOR RELIEF SHOULD BE DISMISSEDON THE BASIS OF THE PROVISIONS OF THE COLORADO GOVERNMENTALIMMUNITY ACT.

Plaintiff’s fifth, sixth, seventh, eighth, and ninth2 claims for relief allege state law tort

claims against Defendants. These claims are barred by the Colorado Governmental

Immunity Act (“CGIA”), C.R.S. § 24-10-101, et seq.

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Any civil action against a public entity or employee that lies or could lie in tort,

whether recognized at common law or by statute, is subject to the provisions of the CGIA,

Defendants are public entities and public employees and, as such, the CGIA applies to

Plaintiff’s state law tort claims.

A. There is no waiver of immunity for Plaintiff’s claims under the CGIA.

The CGIA provides that a public entity and its employees are immune from liability

for all claims that lie in tort or could lie in tort unless immunity has been waived in the

CGIA. See C.R.S. § 24-10-106(1); Reynolds v. State Board for Community Colleges and

Occupational Education, 937 P.2d 774, 776 (Colo.App. 1996). Because Plaintiff’s fifth,

sixth, seventh, eighth, and ninth claims sound in tort and the CGIA does not waive

immunity for the claims, Defendants enjoy immunity and this Court does not have subject

matter jurisdiction over those claims. See Hallam v. City of Colorado Springs, 914 P.2d

479, 481 (Colo.App. 1995) (holding that the issue of sovereign immunity is one of subject

matter jurisdiction).

Immunity has been waived under the CGIA in seven distinct circumstances. The

only potentially applicable waiver in this instance is pursuant to C.R.S. § 24-10-106(1)(b),

which provides that sovereign immunity is waived by a public entity in an action for injuries

resulting from “[t]he operation of any . . . correctional facility . . . or jail by such public

entity.” However, that waiver is inapplicable as Plaintiff’s claims are subject to an exception

in the CGIA for the waiver of immunity relating to the operation of a correctional facility or

jail. That exception provides:

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3 Plaintiff concedes that he was jailed as a parole violator. As such, he wouldbe considered a person incarcerated in a jail pursuant to a prior conviction. See Wakat v.Montgomery County, 471 F.Supp.2d 759, 766 (S.D. Tex. 2007) (“Parolees who aredetained for a violation of parole are considered convicted prisoners rather than pre-trialdetainees.”) See also Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).

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The waiver of sovereign immunity created in paragraphs(b) and (e) of subsection (1) of this section does not apply toclaimants who have been convicted of a crime andincarcerated in a correctional facility or jail pursuant to suchconviction, and such correctional facility or jail shall be immunefrom liability as set forth in subsection (1) of this section.

C.R.S. § 24-10-106(1.5)(a).

Plaintiff was incarcerated as a convicted inmate at the time of the incidents alleged

in his complaint. See complaint at ¶12.3 As such, the exception in § 24-10-106(1.5)(a) of

the CGIA applies to Plaintiff’s state law tort claims against Defendants, and, therefore,

immunity has not been waived under the CGIA in this case. As such, Plaintiff’s state law

tort claims against Defendants should be dismissed as Defendants are immune from suit

for those claims. See Hallam, 914 P.2d at 481; see also Jesusdaughter v. Colorado

Mental Health Institute at Pueblo, 2006 WL 2560707, *7 (D.Colo. 2006).

In discussing the legislative history of this exception to sovereign immunity as

applied to the operations of correctional facilities and jails, the Colorado Court of Appeals

has stated:

The unique nature of prisons and the obligationsimposed in operating them expose the state to significantliability if negligence actions by prisoners are allowed. Section24-10-106(1.5) recognizes this concern, eliminates theexposure, and also prevents the state from being subjected tonumerous frivolous lawsuits that may be brought by inmates in

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an attempt to harass prison officials. Even if a court promptlydismisses such actions, such a dismissal would not be withoutcost to the state. In addition, although the state may beawarded its attorney fees and costs, inmates are frequentlywithout resources from which collection may be made.

The General Assembly’s decision to limit the state’sliability for negligence actions involving prisons recognizesthese factors . . . .

See Davis v. Paolino, 21 P.3d 870, 872 (Colo.App. 2001) (discussing the exception in

section 24-10-106(1.5) and holding that it does not violate equal protection rights of

prisoners).

Plaintiff’s fifth, sixth, seventh, eighth, and ninth claims should be dismissed because

Defendants are immune from liability for those claims and this Court therefore does not

have subject matter jurisdiction over those claims.

B. Alternately, Plaintiff failed to comply with the notice requirements of theCGIA.

Assuming, arguendo, which Defendants do not, that the immunity enjoyed by

Defendants for Plaintiff’s state law tort claims has been waived in the CGIA, those claims

should still be dismissed for Plaintiff’s failure to comply with the notice requirements of the

CGIA.

C.R.S. § 24-10-109(1) requires that a plaintiff provide notice to the public entity

within 180 days of the discovery of the injury and that such notice is a jurisdictional

prerequisite to suit. C.R.S. § 24-10-109(2) contains the requirements for a notice of tort

claim as follows:

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4 Although Defendants concede that there is a notice of claim from Plaintiff,dated June 7, 2007, Defendants do not concede that same complies with either thetimeliness or content requirements of the CGIA.

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(a) The name and address of the claimant and the name andaddress of his attorney, if any;

(b) A concise statement of the factual basis of the claim, includingthe date, time, place, and circumstances of the act, omission,or event complained of;

(c) The name and address of any public employee involved, ifknown;

(d) A concise statement of the nature and the extent of the injuryclaimed to have been suffered;

(e) A statement of the amount of monetary damages that is beingrequested.

A claimant must substantially comply with the notice requirements of the CGIA. See

Woodsmall v. Regional Transp. Dist., 800 F.2d 63, 68 (Colo. 1990). Substantial

compliance means that the claimant must “make a good faith effort to include within the

notice, to the extent the claimant is reasonably able to do so, each item of information

listed in section 24-10-109(2).” Id. at 69; see also Conde v. Colorado State Dept. of

Personnel, 872 P.2d 1381, 1385-86 (Colo.App. 1994).

Plaintiff’s purported notice of claim to Defendants, dated June 7, 2007,4 does not

substantially comply with the notice requirements of § 24-10-109(2). The purported notice

of claim provides the following description of claims against the public entity and

employees:

a) Mr. Gomez has been an inmate at the PuebloCounty jail since August 2006.

b) From the time of his incarceration to the present,Mr. Gomez has been assaulted and injured by jail staff. These

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incidents of assault have included being sprayed with pepperspray and/or mace, shot with a taser gun, beaten and kicked.In addition, Mr. Gomez was assaulted by members of theSTAT team. These assaults were without provocation andwere not done to control inmate or maintain order or safety inthe jail. Finally, during this time, threats were made on Mr.Gomez’s life and his physical safety by an employee namedMedina. Upon information and belief, employees of theSheriff’s Department attempted to have other inmates at thePueblo County Jail assault Mr. Gomez.

c) In January of 2007, Mr. Gomez was injured in afall from the side of the jail building. It is asserted that theinjuries were the result of the actions or failures to act of theSheriff’s Department and its employees. In addition, after thefall, employees of the Sheriff’s Department did little or nothingto aid Mr. Gomez and to provide immediate medical treatmentto him despite serious and life threatening injuries.

d) Since Mr. Gomez’s return to Pueblo from Denverafter the fall, Mr. Gomez has been denied medical treatment,medication and medical supplies. He has again beenthreatened with physical injury by employee Medina. For aperiod of time he was forced to live in unsanitary andintolerable conditions in his jail cell.

e) Mr. Gomez has been charged with additionalcrimes as a cover for at least one assault by employees of theSheriff’s Department.

f) There have been unauthorized disclosures ofmedical information to those not authorized to obtain theinformation.

See notice of claim attached as EXHIBIT A-2.

Plaintiff’s notice of claim is insufficient and does not substantially comply with the

notice requirements of the CGIA as it does not set out the dates, times, and circumstances

of the alleged assaults against Plaintiff and, with the exception of naming “Medina,” the

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identity of the employees involved. Such failures were held by the U.S. District Court for

Colorado to make the notice of claim insufficient for substantial compliance with the CGIA.

Jesusdaughter v. Colorado Mental Health Institute at Pueblo, 2006 WL 2560707 (D.Colo.

2006) (copy attached as EXHIBIT A-3).

In Jesusdaughter, the claimant, an inmate in various institutions over the course of

years, claimed various abuses and injuries in her notice of claim. Her notice of claim

stated the abuses she complained of in general terms, such as “refusal to file grievances,”

“affliction of psychological abuse, mental anguish, loss of property . . . excessive force,”

etc. and stated that the abuses were at the hands of “Colorado Department of Corrections

employees.” Id. at *6.

The court therein found that the claimant did not substantially comply with the notice

of claim requirements as the notice did not provide any facts to describe the type of abuse,

mental anguish, or excessive force, nor did it specify which employee inflicted which

injuries, the date of the injuries, or the date, time, place, and circumstances of each act,

omission, or event complained of. See id. at *7. As such, the court stated that the notice

lacked the sufficient specificity to substantially comply with the notice requirements of the

CGIA. Id. at *7.

In this case, Plaintiff’s notice of claim fails for the same reasons. Like the notice of

claim in Jesusdaughter, Plaintiff’s notice of claim in this case does not provide any facts

to describe the assaults and injuries claimed, nor does it specify which employee inflicted

which injuries. The notice mentions only one employee, “Medina,” with regard to an actual

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alleged assault and then thereafter mentions other individual employees in a separate

paragraph but, again, does not specify which employee inflicted which alleged injuries.

Rather, throughout the notice of claim, in regards to the very general descriptions of the

alleged injuries, there are only generic references to other employees as “jail staff,”

“members of the STAT team,” and “employees of the Sheriff’s Department.”

Further, the notice of claim herein, like in Jesusdaughter, did not specify the dates,

times, and circumstances underlying the alleged assaults and injuries.

Therefore, as with the notice of claim in Jesusdaughter, Plaintiff’s notice of claim

herein does not substantially comply with the requirements for notice under the CGIA. It

is clear that the notice was not a good faith effort by Plaintiff to comply with the notice

requirements. As the Colorado Supreme Court stated in Trinity Broadcasting of Denver,

Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), the contents of the notice must be

in substantial compliance with the statute. The word “substantial” is not meaningless.

Substantial compliance still requires compliance with the requirements of the CGIA. In

discussing the requirements for substantial compliance with the notice requirements of the

CGIA, the Colorado Court of Appeals stated:

In 1990, our supreme court considered the impact ofthis change and, after examining the legislative history of the1986 amendments, determined that the General Assembly “didnot intend to create a standard of absolute or literal compliancewith the notice requirement, but rather intended a degree ofcompliance that was considerably more than minimal but lessthan absolute.” Woodsmall v. Regional Transportation District,[800 P.2d 63, 68 (Colo. 1990)]. The court characterized thislevel of compliance as “substantial compliance,” the same termas was expressly deleted from the statute by the GeneralAssembly.

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While arriving at this conclusion, however, the court didnot find that the removal of the term “substantial” wasmeaningless. The court noted that, according to legislativehistory, the deletion was meant to prevent courts from “seizingon the word ‘substantial’ to allow all manner of defective noticeto be considered.” [citing Woodsmall, 800 P.2d at 68]. Basedupon this reasoning the court further concluded that substantialcompliance requires a good faith effort to include within awritten notice, to the extent reasonably possible, each item ofinformation listed in § 24-10-109(2).

Conde, 872 P.2d at 1385-1386. (Emphasis added.)

As such, again assuming Defendants do not have immunity for the claims, which

Defendants do not assume, Plaintiff’s state law tort claims should be dismissed for

Plaintiff’s failure to comply with the notice requirements of the CGIA.

C. The Notice of Claim is Not a Notice of Any Alleged Injuries OccurringPrior to the 180-day Period Before the Filing of the Notice.

Again assuming, arguendo, that Defendants do not have immunity for Plaintiff’s

state law claims, which Defendants do not assume, any claims of Plaintiff for assaults or

injuries occurring prior to the 180-day period before the notice of claim was filed are forever

barred under the CGIA’s notice provisions. See C.R.S. § 24-10-109(1).

The CGIA requires a person who claims to have been injured by a public entity

and/or a public employee to file a written notice of the claim within 180 days after the date

of discovery of the injury prior to bringing a lawsuit against the public entity or public

employee. C.R.S. § 24-10-109(1) of the CGIA provides:

Any person claiming to have suffered an injury by a publicentity or by an employee thereof while in the course of suchemployment, whether or not by a willful and wanton act or

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omission, shall file a written notice as provided in this sectionwithin one hundred eighty days after the date of the discoveryof the injury, regardless of whether the person then knew all ofthe elements of a claim or of a cause of action for such injury.Compliance with the provisions of this section shall be ajurisdictional prerequisite to any action brought under theprovisions of this article, and failure of compliance shall foreverbar any such action.

(Emphasis added.)

Although Plaintiff’s notice of claim does not provide dates or times for the alleged

assaults and injuries, the notice does state that Plaintiff had been incarcerated at the Jail

since August 2006 and that, from that time to the present (the date of the notice of claim,

June 7, 2007), he was “assaulted and injured by jail staff.” See EXHIBIT A-2.

To the extent any of the alleged injuries occurred before the 180-day period prior

to the notice of claim, Plaintiff is forever barred from making claims as to any alleged

injuries or assaults occurring prior to that time. Plaintiff’s failure to submit a timely notice

of claim for those alleged injuries or assaults occurring prior to that time defeats subject

matter jurisdiction for those injuries and forever bars any claims Plaintiff may have for

same. See C.R.S. § 24-10-109(1); see also City and County of Denver v. Crandall, 161

P.3d 627, 634 (Colo. 2007) (holding that the notice of claim provision is both a condition

precedent and a jurisdictional prerequisite to suit under the CGIA, and must be strictly

applied; any failure to comply with it is an absolute bar to suit).

Further, it has been clearly established in Colorado that there is no continuing tort

theory that can be used to defeat the 180-day notice period. See Crandall, 161 P.3d at

633-634. The Colorado Supreme Court in that case held that “[t]he CGIA is a non-claim

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statute that does not recognize tolling for those occurrences that are continuous in nature.”

Id. at 634. As such, Plaintiff’s claims based on any alleged assaults or injuries that

occurred prior to the 180-day period, before the notice of claim was filed, are forever

barred.

D. Alternately, Plaintiff Cannot Recover for Damages Sustained in theCommission of a Felony.

Again, assuming, arguendo, which Defendants do not, that the immunity enjoyed

by Defendants for Plaintiff’s state law tort claims has been waived in the CGIA, to the

extent Plaintiff makes claims for damages incurred during his escape attempt, those claims

should still be dismissed as they are barred by Colorado law.

C.R.S. § 13-80-119 provides that damages are not recoverable for injuries

“sustained during the commission of or during immediate flight from an act that is defined

by any law of this state or the United States to be a felony.” Pursuant to C.R.S. § 18-8-

208, a person escaping from custody or confinement commits a felony unless the person

has been convicted of a misdemeanor or petty offense or a violation of a municipal

ordinance.

Plaintiff was found guilty of escape from a pending felony on July 13, 2007. This

is a class 4 felony. See portion of criminal history report for Plaintiff, attached hereto as

EXHIBIT A-4.

Accordingly, to the extent Plaintiff’s claims are to recover damages sustained during

his escape attempt, such claims are barred and must be dismissed.

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5 Citing Bennett v.Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), and Wisev. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981).

6 A copy is attached hereto as EXHIBIT A-5.

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II. PLAINTIFF FAILS TO PLEAD FACTS OF PERSONAL PARTICIPATION AS TOINDIVIDUAL DEFENDANTS.

Personal participation by a defendant is required for liability in a § 1983 action. See

McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983); Olson v. Stotts, 9 F.3d 1475, 1477

(10th Cir. 1993) (“[a] defendant cannot be liable under § 1983 unless personally involved

in the deprivation”). The plaintiff must show the defendant personally participated in the

alleged violation, and conclusory allegations are not sufficient to state a constitutional

violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).5

Nor can a plaintiff rely on respondeat superior liability for a § 1983 action. See

McKee, 703 F.3d at 483. Indeed, for any finding of liability as to an individual defendant

under § 1983, there must be a causal connection or affirmative link “‘between the

constitutional deprivation and either the supervisor’s personal participation, his exercise

of control or direction, or his failure to supervise.’” Brack v. Ortiz, 2007 WL 867992 *14 (D.

Colo. March 20, 2007)6, quoting Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.

1993). See also Jenkins, 81 F.3d at 994.

Allegations of sufficient facts to establish a claim for relief and against which an

individual defendant must defend is necessary to maintain either a federal or state tort

claim against individual defendants. See Fed. R. Civ. P. 8(a)(2). See also Robbins v.

Oklahoma, - - - F.3d - - -, 2008 WL 747132 (10th Cir. March 21, 2008).

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A. Hall.

All allegations made by Plaintiff against Hall relate to his supervision of other

defendants in this matter. Plaintiff also identifies Hall as the bureau chief in charge of the

Jail.

These allegations do not state a viable claim against Hall. Indeed, based on the

allegations, it appears as though Plaintiff’s only allegations against Hall related to his role

as a supervisor. However, as set forth above, there is no respondeat superior liability

under § 1983. As such, Plaintiff’s claims against Hall must be dismissed.

B. Stuart.

As to Stuart, Plaintiff provides no factual allegations, apart from stating that she was

a supervisor of the other individual Defendants. Plaintiff may not rely on respondeat

superior liability to impose § 1983 liability on Stuart, and his claims against her must be

dismissed.

C. Lightcap.

Plaintiff provides slightly more detail as to Lightcap than certain other Defendants.

In addition to asserting that Lightcap was a supervisor to other Defendants, Plaintiff also

states that Lightcap found him injured on the ground after the escape attempt and called

for medical help. See complaint ¶ 27.

It is unclear from the complaint whether Plaintiff is merely asserting respondeat

superior liability against Lightcap, or if Plaintiff is attempting to assert some novel theory

of liability against Lightcap for coming to Plaintiff’s aid. If it is the latter, Plaintiff fails to

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articulate how such conduct might establish a claim. Neither theory is viable under the

facts as stated, and the claims against Lightcap must be dismissed.

D. Medina.

While Plaintiff identifies Medina as participating in the alleged assaults on Plaintiff,

there are no allegations of personal participation by Medina as to any other conduct

alleged to establish a claim. As such, to the extent not involved in Plaintiff’s claims for

excessive force, the claims against Medina must be dismissed.

E. Sykes.

Plaintiff alleges that Sykes “left the maximum security section - 4B - unattended for

more than an hour” on January 10, 2007, the date of Plaintiff’s second escape. See

complaint ¶ 25.

Even assuming this allegation is true, Plaintiff has not specified what constitutional

right has been violated. Nor has Plaintiff provided any causal connection between the

ward being left unattended and any such constitutional violation. The claims against Sykes

must be dismissed.

F. Morales.

Plaintiff’s allegations regarding Morales involve the discovery of a homemade candle

used to melt part of a tile in the shower area through which Plaintiff escaped. The

complaint states that Morales smelled something burning in the shower area and

discovered the candle, but “nothing was done by Jail personnel in response to this

incident.” See complaint ¶ 23.

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As with Plaintiff’s allegations against Sykes, the allegations against Morales do not

set out what constitutional right has been violated and a link between Morales’ actions and

a violation of Plaintiff’s constitutional rights. The claims against Morales must be

dismissed.

G. Corsentino.

Corsentino is the former Sheriff of Pueblo County and left office on January 8, 2007,

two days prior to Plaintiff’s second escape from the Jail. Plaintiff asserts that Corsentino

established policies, procedures, customs, and/or practices that exhibited a deliberate

indifference to the constitutional rights of individuals housed in the Jail and accordingly

caused a violation of Plaintiff’s constitutional rights. The complaint further states that there

was a failure to train and supervise “with respect to the use of force and providing

adequate medical care.” See complaint ¶ 54.

Plaintiff further alleges that Corsentino interviewed Plaintiff following his first escape

from the Jail and that Plaintiff told Corsentino that “there were many ways to get out of the

facility.” See complaint ¶ 17.

Again, respondeat superior liability is not available in a § 1983 action. Plaintiff’s

claims against Corsentino in his individual capacity must be dismissed.

H. Taylor.

Taylor took office as the Sheriff of Pueblo County on January 8, 2007. Plaintiff

escaped on January 10, 2007. On its face, the complaint fails to establish how Taylor

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personally participated in a deprivation of Plaintiff’s constitutional rights after being in office

for less than two full days.

As with Corsentino, the claims against Taylor in his individual capacity must be

dismissed.

III. PLAINTIFF’S CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS IN THEIROFFICIAL CAPACITIES SHOULD BE DISMISSED.

A claim against a public official in his official capacity is the equivalent of a claim

against the public entity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Additionally, the United States District Court for the District of Colorado has stated that a

§ 1983 action against a municipality may be pled against the municipality or against an

official in their official capacity. Stump v. Gates, 777 F. Supp. 808, 816 n.3 (D. Colo.

1991). (“As the United States Supreme Court repeatedly has stated, a § 1983 action

appropriately is pleaded against a municipality either by naming the municipality itself or

by naming a municipal official in his or her official capacity. Naming either is sufficient.

Naming both is redundant.”) (Citations omitted.)

The complaint names Pueblo County by and through the Pueblo County Board of

County Commissioners. Complaint ¶ 2. The complaint also names Corsentino and Taylor

in both their individual and official capacities. Complaint ¶¶ 3, 4. As to all other individually

named Defendants, the complaint states that “[a]ll of the individual Defendants are sued

individually and in their official capacity.” Complaint ¶ 5.

Defendants agree that naming the Board of County Commissioners is the

appropriate method by which to bring claims against Pueblo County. See C.R.S. § 30-22-

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205; Calahan v. Jefferson County, 429 P.2d 301, 302 (Colo. 1967). However, to the extent

Plaintiff’s complaint asserts claims against all individual Defendants in their official

capacities, such claims should be dismissed as redundant.

IV. SEVERAL OF PLAINTIFF’S CLAIMS FOR RELIEF FAIL TO STATE A CLAIMUPON WHICH RELIEF MAY BE BASED.

Until recently, the test on a motion to dismiss for failure to state a claim was one that

placed a heavier burden on the moving party. In order to prevail, the moving party had to

show that it appeared “beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

However, with the United States Supreme Court’s decision in Bell Atlantic Corp. v.

Twombly, - - - U.S. - - -, 127 S. Ct. 1955 (2007), a new standard has emerged that requires

more detailed pleading by a plaintiff. It is no longer enough that a claim be conceivable;

it must be plausible. Id. at 1974. This standard has been characterized by the 10th Circuit

as follows: “to withstand a motion to dismiss, a complaint must contain enough allegations

of fact ‘to state a claim to relief that is plausible on its face.’” Robbins v. Oklahoma, - - -

F.3d - - -, 2008 WL 747132 (10th Cir. March 21, 2008), quoting Twombly, 127 S. Ct. at

1974. Furthermore,

[u]nder this revised standard, as we explained in Ridge at RedHawk, L.L.C. v. Schneider:

the mere metaphysical possibility that someplaintiff could prove some set of facts in supportof the pleaded claims is insufficient; thecomplaint must give the court reason to believethat this plaintiff has a reasonable likelihood ofmustering factual support for these claims.

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493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).The burden is on the plaintiff to frame a “complaint withenough factual matter (taken as true) to suggest” that he orshe is entitled to relief. Twombly, 127 S. Ct. at 1965.

Robbins at *2.

While it is true that prison officials and jail staff may not be deliberately indifferent

to the constitutional rights of inmates, there is not a clearly established constitutional right

involving preventing an inmate from escaping from jail. Nor does Plaintiff’s complaint

assert such a right. However, much of the complaint appears to be asserting that

Defendants’ liability stems largely from their failure to prevent Plaintiff from injuring himself

during an escape attempt.

A. Plaintiff’s First Claim for Relief Fails to State a Claim.

Plaintiff’s first claim is a 42 U.S.C. § 1983 claim for excessive force. However,

Plaintiff does not allege a constitutional basis upon which the claim is founded. A plaintiff

may not merely reference 42 U.S.C. § 1983. See Albright v. Oliver, 510 U.S. 266, 271

(1994) (“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

method for vindicating federal rights elsewhere conferred.’”) (quoting Baker v. McCollan,

443 U.S. 137, 144, n. 3 (1979)). As such, Plaintiff’s first claim must be dismissed.

B. Plaintiff’s Second Claim for Relief Fails to State a Claim.

Plaintiff’s second claim is for a conspiracy to violate civil rights and is asserted under

42 U.S.C. § 1983. This claim asserts that “Defendants Medina and John Does agreed,

conspired, acted together and in concert to deprive Plaintiff of his constitutional right of the

due process of law by assaulting, tasing, beating and kicking him and then by acting

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together to obstruct justice and prevent disclosure of evidence of their unlawful acts.” See

Complaint ¶ 39.

This claim does not meet the standard set forth in Twombly. Indeed, the Tenth

Circuit has long held that these conclusory allegations of conspiracy are insufficient to state

a claim. See Tonkovich v. Kansas Bd. Of Regents, 159 F.3d 504, 533 (10th Cir. 1998).

Plaintiff is asserting a claim of conspiracy yet only identifies one Defendant by name.

These allegations are not sufficient to create a plausible claim and the claim must be

dismissed.

Furthermore, as with Plaintiff’s first claim for relief, Plaintiff has failed to set forth the

constitutional basis upon which he asserts this claim. Plaintiff’s rights, however, are not

conferred upon him by Section 1983. See Albright, 510 U.S. at 271.

C. Plaintiff’s Third Claim for Relief Fails to State a Claim.

Plaintiff’s third claim is also based on 42 U.S.C. § 1983 and asserts a violation of

Plaintiff’s Fourth, Fifth, Eighth, and Fourteenth Amendment rights, including policy and

practice of Pueblo County to allow and/or conceal use of excessive force. As Plaintiff was

not a pre-trial detainee, see above, the basis Plaintiff claims for Fourth, Fifth, and

Fourteenth Amendment violations is unclear. Moreover, beyond his assertions that Medina

tased and beat him, Plaintiff has not made any allegations regarding the policy of Pueblo

County or how Pueblo County has a policy to allow officers to use excessive force. Nor

has Plaintiff distinguished how his third claim for relief is any different from his first claim

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for relief (violation of civil rights through use of excessive force), or his fourth claim for

relief.

While Plaintiff’s complaint is not subject to a heightened pleading requirement, it

nevertheless must demonstrate a plausible claim. Plaintiff has not done so and, thus, his

third claim for relief must be dismissed for failure to state a claim.

D. Plaintiff’s Fourth Claim for Relief Fails to State a Claim.

Plaintiff’s fourth claim for relief is a claim for a constitutional failure to train and/or

supervise. In order to prevail on this claim, Plaintiff must demonstrate that Pueblo County

was deliberately indifferent to the rights of citizens. See City of Canton, Ohio v. Harris, 489

U.S. 378 (1989). Additionally, a claim for failure to train can only be made where a plaintiff

has shown that an official responsible for establishing policy has deliberately chosen to

follow a certain course of action out of other alternatives. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986).

Plaintiff’s complaint has not made even the barest of allegations of any such

deliberate choice by any responsible official. Simply asserting that “Corsentino and Taylor

developed and maintained policies, procedures, customs and/or practices exhibiting a

deliberate indifference to the Constitutional rights of persons in Pueblo County which

caused violation of Plaintiff’s Consitutional rights” (Complaint ¶ 53), does not meet the

standard set in Twombly. These are mere conclusory allegations without any detail that

makes the claim plausible. As such, Plaintiff’s fourth claim must be dismissed.

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MOTION FOR SUMMARY JUDGMENT

I. PLAINTIFF’S FEDERALLY-BASED CLAIMS FOR RELIEF SHOULD BEDISMISSED ON THE BASIS OF ITS FAILURE TO EXHAUST ADMINISTRATIVEREMEDIES.

A. Prerequisites to Filing Suit Under the Prison Litigation Reform Act.

Pursuant to the Prison Litigation Reform Act (“PLRA”), an inmate litigant is required

to exhaust his administrative remedies prior to bringing suit. The relevant provision states:

No action shall be brought with respect to prison conditionsunder [42 U.S.C. § 1983], or any other Federal law, by aprisoner confined in any jail, prison, or other correctional facilityuntil such administrative remedies as are available areexhausted.

42 U.S.C. § 1997e(a).

The United State Supreme Court has held that the exhaustion requirement of the

PLRA “applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516 (2002).

The United States Supreme Court has also recently clarified certain procedural

issues concerning inmate litigants and the requirement of exhaustion of administrative

remedies. In Jones v. Bock, - - - U.S. - - -, 127 S. Ct. 910, 918-19, 166 L.Ed.2d 798

(2007), the Court confirmed that “[t]here is no question that exhaustion is mandatory under

the PLRA and that unexhausted claims cannot be brought in court.” Jones also confirmed

that failure to exhaust is an affirmative defense to be raised by a defendant. Id. at 921.

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In order to “properly exhaust administrative remedies prisoners must ‘complete the

administrative review process in accordance with the applicable procedural rules.’” Id. at

922, quoting Woodford v. Ngo, 548 U.S. 81 (2006). The “applicable procedural rules” are

the specific rules set out by the prison’s inmate grievance policy. Therefore, “it is the

prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”

Jones, 127 S. Ct. at 923.

Additionally, “[a]n inmate who begins the grievance process but does not complete

it is barred from pursuing a § 1983 claim under PLRA for failure to exhaust his

administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), citing

Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).

Finally, exhaustion of administrative remedies is required even if the prison’s

grievance procedure does not authorize the relief requested. See Booth v. Churner, 532

U.S. 731, 734 (2001).

B. Plaintiff did not Exhaust his Administrative Remedies.

As set forth above under the undisputed material facts, the Jail has adopted a policy

concerning inmate grievances. This policy provides that an inmate must first try to resolve

a grievance informally. Then the inmate may submit a grievance in writing. If the response

to the written grievance is unsatisfactory, the inmate may appeal up through the chain of

command to the sheriff. See ALCALA AFFIDAVIT EXHIBIT 1, attached to EXHIBIT A-1.

During his incarceration at the Jail, Plaintiff filed only two grievances. One of these

grievances, dated October 30, 2006, relates to a problem that Plaintiff experienced with

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his visitation after being placed in administrative segregation and, also, his frustration over

being placed in administrative segregation. See ALCALA AFFIDAVIT EXHIBIT 2,

attached to EXHIBIT A-1.

Plaintiff’s second grievance is dated November 5, 2006, and also involves Plaintiff’s

placement in administrative segregation. In this grievance, Plaintiff requested to get out

of the “hole” and stated that he has not been charged with anything. He also asserted that

the right procedure was not followed and that his constitutional rights had been violated

because of this failure to follow procedure. See ALCALA AFFIDAVIT EXHIBIT 3, attached

to EXHIBIT A-1.

Plaintiff’s two grievances do not make any mention of the events that Plaintiff

alleges in his complaint. While the allegations in the complaint are vague, at the least it

is clear that Plaintiff did not file any grievances in connection with the use of force

incidents. Even if Plaintiff had filed a grievance regarding these incidents, which he did

not, he failed to file any appeals during his incarceration at the Jail. As such, Plaintiff failed

to exhaust his administrative remedies and all claims as they relate to the Jail conditions

must be dismissed.

CONCLUSION

For the reasons stated above, Defendants request that this Court grant Defendants’

combined motion to dismiss and motion for summary judgment and award those costs and

fees and such other relief as this Court finds reasonable.

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REQUEST FOR COSTS AND ATTORNEYS FEES

42 U.S.C. § 1988 provides that a court, in its discretion, may award reasonable

attorney fees to the prevailing party in an action brought to enforce a federal right. Such

fees may be awarded where a plaintiff’s claims are “frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith.” See Hughes v. Rowe, 449

U.S. 5, 14 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978).

Additionally, Colorado state law provides that a person may not recover damages

sustained during the commission of a felony or in flight from a felony and that the person

against whom any such action is brought may recover attorney fees and costs. See C.R.S.

§ 13-80-119. As set forth above in Section I, D, Plaintiff was found guilty of a class 4

felony after his escape attempt.

Finally, to the extent that Plaintiff seeks exemplary damages for his state tort claims

based on allegations of willful and wanton conduct, Defendants request attorney fees in

the event the Court dismisses such claims. See C.R.S. § 24-10-110(c) (“In any action

against a public employee in which exemplary damages are sought based on allegations

that an act or omission of a public employee was willful and wanton, if the plaintiff does not

substantially prevail on his claim . . . the court shall award attorney fees against the plaintiff

or the plaintiff’s attorney or both.”).

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As such, to the extent this Court grants Defendants’ combined motion to dismiss

and motion for summary judgment, Defendants respectfully request that the Court award

them their reasonable costs and attorney fees.

Respectfully submitted,

Date: March 31, 2008 s/ Ann B. Smith Gordon L. VaughanAnn B. Smith

VAUGHAN & DeMURO111 South Tejon, Suite 410Colorado Springs, CO 80903(719) 578-5500 (phone)(719) 578-5504 (fax)vnd@vaughandemuro.com (e-mail)

ATTORNEY FOR DEFENDANTS

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CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of March, 2008, I electronically filed theforegoing with the Clerk of Court using the CM/ECF system which will send notification ofsuch filing to the following e-mail addresses:

George Case Priceheliconllc@yahoo.com

and I hereby certify that the foregoing was placed in the U.S. Mail, postage prepaid, andaddressed to the following:

[none]

s/ Ann B. Smith Ann B. Smith

VAUGHAN & DeMURO111 South Tejon, Suite 410Colorado Springs, CO 80903719-578-5500 (phone)719-578-5504 (fax)vnd@vaughandemuro.com (e-mail)

ATTORNEY FOR DEFENDANTS

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