Mohamed v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-02676-NYW-MDB
KHALFAN KHAMIS MOHAMED,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation of United States
Magistrate Judge Maritza Dominguez Braswell. [Doc. 187, issued February 18, 2025].
Judge Dominguez Braswell recommends that Defendant’s Partial Motion to Dismiss Third
Amended Complaint (or “Motion”), [Doc. 177], be granted, see [Doc. 187 at 21]. Plaintiff
Khalfan Khamis Mohamed (“Plaintiff” or “Mr. Mohamed”) has objected to the
Recommendation (“Objection”), see [Doc. 189], and Defendant United States (or “the
Government”) has responded, see [Doc. 190]. For the reasons set forth below, Plaintiff’s
Objection is respectfully OVERRULED and the Recommendation is ADOPTED.
LEGAL STANDARDS
I. Rule 72(b)
A district court may refer a dispositive motion to a magistrate judge for
recommendation. 28 U.S.C. § 636(b)(1)(B). The district court “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). “[A] party’s objections to the magistrate judge’s report and
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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). Such specific objections permit “the district judge to focus
attention on those issues—factual and legal—that are at the heart of the parties’ dispute.”
Id. at 1059 (quotation omitted).
II. Rule 12(b)(1)
A party’s assertion of sovereign immunity implicates the Court’s subject matter
jurisdiction. See Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1261 (10th Cir. 2018).
Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). “A court lacking jurisdiction cannot render judgment but must
dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.
2013) (quotation omitted). The burden of establishing jurisdiction rests with the party
asserting jurisdiction. Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017). Attacks on
subject matter jurisdiction may take two different forms, a facial attack or a factual attack,
each triggering a different analytical framework. The United States Court of Appeals for
the Tenth Circuit (“Tenth Circuit”) has explained that
Motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)
may take one of two forms. First, a party may make a facial challenge to
the plaintiff's allegations concerning subject matter jurisdiction, thereby
questioning the sufficiency of the complaint. In addressing a facial attack,
the district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. In
addressing a factual attack, the court does not presume the truthfulness of
the complaint’s factual allegations, but has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).
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United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quotations and
citations omitted). Here, Defendant focuses only on the adequacy of the allegations in
Plaintiff’s complaint and submitted no other documents along with its motion. See
generally [Doc. 177]. The Court therefore takes Plaintiff’s factual allegations as true in
deciding Defendant’s jurisdictional arguments. See Rodriguez-Aguirre, 264 F.3d at 1203.
III. Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under
Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and
view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010). A plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted); see also Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to
the scope of the allegations in a complaint,” and that the allegations must be sufficient to
nudge a plaintiff’s claim(s) “across the line from conceivable to plausible” (quotation
omitted)). The Court must ultimately “determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an entitlement to relief under the
legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir.
2007).
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IV. Pro Se Filings
In applying the above principles, the Court is mindful that Mr. Mohamed proceeds
pro se. The Court thus affords his papers and filings a liberal construction. Haines v.
Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court cannot and does not
act as a pro se litigant’s advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991),
and applies the same procedural rules and substantive law to pro se parties as to
represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.
2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
BACKGROUND
Judge Dominguez Braswell sets out the background of this case in her
Recommendation, see [Doc. 187 at 2–5], and the Court repeats it here only as necessary
to resolve Plaintiff’s Objection. Plaintiff is a federal inmate who was incarcerated at the
United States Penitentiary Administrative Maximum Facility (“ADX”) in Florence, Colorado
during the events relevant to this lawsuit. [Doc. 174 at ¶¶ 1–2]. Plaintiff asserts claims
based on prison officials’ conduct in connection with his hunger strike in March and April
of 2020. [Id. at ¶ 1].1 He alleges that prison staff violated Bureau of Prisons (“BOP”)
regulations requiring them to refer an inmate on a hunger strike to medical staff and
subject him to “close monitoring,” including monitoring food and water intake. [Id. at
¶¶ 19–21]. Plaintiff further alleges that Officer Santistevan, an ADX correctional officer,
refused to refer Plaintiff to the ADX doctor and falsified reports of Plaintiff’s food intake in
1 The first two paragraphs of the Third Amended Complaint state that Plaintiff began his
hunger strike on March 29, 2019, instead of March 29, 2020. See [Doc. 174 at ¶¶ 1–2].
This is plainly a misprint by Plaintiff, as the remainder of the pleading refers to the start
date as March 29, 2020 and makes clear that the relevant events occurred in 2020. See,
e.g., [id. at ¶ 13, 17–18, 41, 48, 54, 108, 111].
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order to delay medical care for Plaintiff. [Id. at ¶¶ 25–26, 28, 33, 61, 84, 141]. According
to Plaintiff, Officer Santistevan also violated BOP regulations by refusing to remove
commissary food items from Plaintiff’s cell at the beginning of his hunger strike. [Id. at
¶¶ 19, 36, 141].
At one point during the hunger strike, on April 15, 2020, Officer Santistevan
allegedly led other officers in “excessively tightening [Plaintiff’s] restraints” before
transporting Plaintiff to the medical unit in a manner that caused Plaintiff “excruciating
pain.” [Id. at ¶¶ 145, 148–49]. Officer Santistevan “jerked” Plaintiff up by his waist chain
when walking him to the medical unit, told him to “shut up” when Plaintiff complained the
restraints caused him pain, and slammed Plaintiff down on the bed in the medical unit.
[Id. at ¶¶ 154–59].
Plaintiff alleges that Officer Santistevan’s superiors, Lieutenant Medrano and
Warden True, were aware of Plaintiff’s complaints about Officer Santistevan but failed to
adequately supervise him or otherwise intervene in his conduct. [Id. at ¶¶ 14, 19, 38–40,
56–59, 72–73, 185–88]. Plaintiff further alleges that Lieutenant Medrano observed Officer
Santistevan’s alleged violations of BOP policy and use of excessive force but did not stop
him. [Id. at ¶¶ 19, 29–36, 153, 160, 174–79].
Plaintiff’s Third Amended Complaint asserts six claims, which the Court refers to
based on the numbers used by Plaintiff:
• A negligence claim based on Officer Santistevan’s conduct during Plaintiff’s
hunger strike (“Claim Four”), [id. at ¶¶ 140–42];
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• A negligence claim based on Officer Santistevan’s “use of unnecessary force”
during Plaintiff’s transport to and from the medical unit (“Claim Five”), [id. at
¶¶ 143–69];
• Battery claims based on Officer Santistevan’s “use of unnecessary force”
during Plaintiff’s transport to and from the medical unit (“Claims Six and
Seven”), [id. at ¶¶ 171–73];
• Lieutenant Medrano’s “failure to protect [Plaintiff] and to intervene” in Officer
Santistevan’s alleged wrongful conduct (“Claim Eight”), [id. at ¶¶ 174–79];
• Lieutenant Medrano’s negligent supervision of Officer Santistevan during
Plaintiff’s transport to and from the medical unit and during the application of
restraints to Plaintiff prior to transport (“Claim Nine”), [id. at ¶¶ 180–84]; and
• Warden True’s “failure to protect [Plaintiff] and to intervene” on Plaintiff’s behalf
(“Claim Ten”), [id. at ¶¶ 185–88].
The Government seeks, and Judge Dominguez Braswell recommends, dismissal of
Claims Four, Five, Eight, and Ten. [Doc. 177 at 1; Doc. 187 at 21]. Claims Six and Seven
and Claim Nine are not at issue. The Court considers Plaintiff’s Objection below.
ANALYSIS
I. The FTCA
The United States is generally immune from suit pursuant to the doctrine of
sovereign immunity, which precludes federal jurisdiction. See United States v. Mitchell,
463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a prerequisite for jurisdiction.”). But
“[t]hrough 28 U.S.C. § 1346(b)(1), the FTCA waives sovereign immunity for certain state
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law tort claims against the United States.” Garling v. EPA, 849 F.3d 1289, 1294 (10th
Cir. 2017). More specifically, the FTCA waives sovereign immunity “with respect to
certain injuries caused by government employees acting within the scope of their
employment.” Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). The FTCA
provides that the United States may be sued for damages for injuries
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act
or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). “Put another way, the FTCA incorporates the
substantive law of the state where the tortious act or omission occurred.” Augutis v.
United States, 732 F.3d 749, 752 (7th Cir. 2013) (quotation omitted); accord Garling, 849
F.3d at 1294 (“State substantive law applies to suits brought against the United States
under the FTCA.” (quotation omitted)). Here, all relevant acts or omissions occurred in
Colorado. See [Doc. 174 at ¶ 1]. The Court accordingly applies Colorado law to Plaintiff’s
tort claims in determining whether Plaintiff has adequately pled claims that fall within the
FTCA’s waiver of sovereign immunity.
II. Claim Four
Claim Four asserts a negligence claim based on Officer Santistevan’s oversight of
Plaintiff’s hunger strike. See [Id. at ¶¶ 140–42]. Specifically, Plaintiff alleges that Officer
Santistevan failed to refer him to medical staff, fabricated his food intake records, and
violated BOP regulations by failing to remove Plaintiff’s commissary food from his cell.
[Id. at ¶¶ 19, 25–26, 28, 64, 68–70]. Judge Dominguez Braswell recommends dismissal
of Claim Four because Plaintiff fails to plausibly allege that any of these acts caused his
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injuries. [Doc. 187 at 10–16]. The Court briefly sets out the law regarding the causation
element of negligence before turning to Plaintiff’s Objection.
Under Colorado law, “[t]o establish a prima facie case for negligence, a plaintiff
must show that the defendant owed a legal duty of care to the plaintiff, the defendant
breached that duty, the plaintiff suffered injury, and the defendant’s breach caused the
plaintiff’s injury.” Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002). The causation element
is determined using the “but for” test—a plaintiff must allege that “but for the alleged
negligence, the harm would not have occurred.” Deines v. Atlas Energy Servs. LLC, 484
P.3d 798, 801 (Colo. App. 2021). “The requirement of ‘but for’ causation is satisfied if the
negligent conduct in a natural and continued sequence, unbroken by any efficient,
intervening cause, produces the result complained of, and without which the result would
not have occurred.” N. Colo. Med. Ctr. v. Comm. on Anticompetitive Conduct, 914 P.2d
902, 908 (Colo. 1996) (quotation and brackets omitted).
To establish causation, a plaintiff must also “show that the negligence was a
‘substantial factor’ in producing the harm.” Id. (quotation omitted). “If an event other than
the defendant’s alleged conduct appears predominant, the defendant’s conduct cannot
be a substantial factor.” Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1228 (D.
Colo. 2015) (citing N. Colo. Med. Ctr., 914 P.2d at 908). When events or acts other than
the defendant’s conduct combine to cause a harm, one of those other events “may have
such a predominant effect in bringing . . . about [the harm] as to make the effect of the
actor’s negligence insignificant and, therefore, to prevent it from being a substantial
factor.” Smith v. State Comp. Ins. Fund, 749 P.2d 462, 464 (Colo. App. 1987) (quoting
Restatement (Second) of Torts § 433 cmt. d (Am. L. Inst. 1965)). Similarly, even if “no
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one of the contributing factors may have such a predominant effect, their combined effect
may . . . so dilute the effects of the actor’s negligence as to prevent it from being a
substantial factor.” Id.
A. Failure to Refer Plaintiff to Medical Staff
Judge Dominguez Braswell finds that Plaintiff cannot sustain a negligence claim
on Officer Santistevan’s alleged failure to refer because Plaintiff does not sufficiently
allege a causal link between the conduct and Plaintiff’s injuries. [Id. at 11–12]. Judge
Dominguez Braswell points out that, as alleged, Officer Santistevan could not control “the
timing of Plaintiff’s medical care.” [Id. at 11 (citing [Doc. 174 at ¶ 44])]. The medical staff
were aware of Plaintiff’s hunger strike from the beginning, and the ADX doctor and
warden, not Officer Santistevan, had the final say on whether Plaintiff received medical
attention. [Id. at 11–12 (citing [Doc. 174 at ¶ 17, 44])]. Nor does Plaintiff allege that an
earlier or additional medical assessment would have prevented or mitigated his injuries.
[Id. at 12 (observing that Plaintiff alleges medical staff declined to treat Plaintiff during his
first two medical encounters during the strike (citing [Doc. 174 at ¶¶ 48–52, 77–81]))].
Plaintiff objects on the basis that a medical referral from Officer Santistevan would
have increased his odds of receiving a visit from the medical staff. [Doc. 189 at 1–2].
Because Officer Santistevan was “the responsible officer in the unit,” medical staff “relies
on him first and foremost” rather than Plaintiff’s “own submitted written requests.” [Id. at
1]. Plaintiff explains that medical staff usually “ignore prisoners’ self-reporting [medical
requests], but rarely do so with staff’s, especially when such reporting comes from an
experienced and a high level staff like [Officer Santistevan].” [Id.].
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As an initial matter, Plaintiff’s statement that medical staff rely on other officers to
refer prisoners for medical attention appears to be a new factual allegation asserted for
the first time in the Objection. The Court cannot take this allegation as true in ruling on
the Recommendation and Objection. See, e.g., Braun v. United States, No. 1:22-cv-
00108-RJS-CMR, 2023 WL 6158943, at *5 (D. Utah Sept. 21, 2023). Even crediting this
allegation, however, Plaintiff still fails to establish that “but for” Officer Santistevan’s
refusal to refer him to medical staff, Plaintiff’s injuries would have been prevented.
The Court respectfully concurs with Judge Dominguez Braswell that, according to
Plaintiff’s allegations, Officer Santistevan could not control Plaintiff’s medical care.
Despite Officer Santistevan’s alleged failure to refer, medical staff still visited Plaintiff
twice during his hunger strike. [Doc. 174 at ¶¶ 48–52, 77–81]. Both times, they declined
to treat Plaintiff. [Id.]. And as Judge Dominguez Braswell emphasizes, Plaintiff alleges
that the ADX warden and doctor—the only officials who could “authorize any medical
assessment or treatment”—were aware of Plaintiff’s hunger strike and its physical effects
on him, yet did not order medical intervention. See [id. at ¶¶ 44, 51, 57–58]; see also [id.
at ¶¶ 76–81, 85 (alleging that, one day after Plaintiff vomited blood, a BOP officer told
Plaintiff that the warden and doctor knew about Plaintiff’s condition and “were not
concerned” for his health)]. In light of these other officials’ conduct, Plaintiff’s argument
that a referral from Officer Santistevan would have led to a different result is merely
speculative. See Reigel v. SavaSeniorCare, L.L.C., 292 P.3d 977, 988 (Colo. App. 2011)
(“[T]he plaintiff must establish causation beyond mere possibility or speculation.” (quoting
Nelson v. Hammon, 802 P.2d 452, 457 (Colo. 1990))).
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The Court also agrees that Plaintiff has not plausibly alleged that Officer
Santistevan’s failure to refer was a substantial factor in his injuries. Judge Dominguez
Braswell observes that “a hunger strike, in and of itself, puts one at grave risk for serious
health problems.” [Doc. 187 at n.12]. Plaintiff’s injuries ultimately arise from his decision
to begin and continue a hunger strike. His allegations suggest that he continued to
receive his usual meal “trays,” even if he chose not to eat from them. See, e.g., [Doc.
174 at ¶ 61]. Plaintiff objects that he “never went into hunger strike for self harm.” [Doc.
189 at 2]. But motive is irrelevant to the substantial factor analysis. Instead, courts focus
only on whether an injured party’s conduct, or any other acts or events, played enough of
a role in causing the injury that the defendant’s conduct was not a substantial factor. See
Smith, 749 P.2d at 464 (finding that failure to timely approve decedent’s alcoholism
rehabilitation plan was not a substantial factor in decedent’s death in motorcycle crash
when he operated the motorcycle while intoxicated and wearing a knee brace that
affected his ability to drive). Between Plaintiff’s voluntary conduct and the more
immediate roles of the ADX warden, doctor, and medical staff in delaying medical
attention to Plaintiff, the Court concludes that Plaintiff fails to plausibly allege that Officer
Santistevan’s failure to refer him to medical staff was a substantial factor in his injuries.
B. Falsification of Food Intake Records
Judge Dominguez Braswell recommends dismissal of Claim Four for two reasons
insofar as the claim is predicated on Officer Santistevan’s alleged falsification of Plaintiff’s
intake. [Doc. 187 at 12–15& n.7]. For one, she recommends dismissal based on
Plaintiff’s failure to adequately allege that Officer Santistevan’s falsification of his food
intake records caused him harm. [Id. at 15 n.7]. Plaintiff offers only a conclusory objection
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to this finding, [Doc. 189 at 3], which the Court liberally construes as incorporating his
causation arguments with respect to Officer Santistevan’s alleged failure to refer him to
medical staff. For the same reasons set forth above, the Court finds that Plaintiff does
not plausibly allege causation. Based on Plaintiff’s allegations that other officials with
more control over Plaintiff’s medical care were aware of Plaintiff’s hunger strike, Plaintiff
fails to adequately allege that Officer Santistevan’s falsification of his food intake records
was a “but for” cause of Plaintiff’s injuries. Nor was the alleged falsification a substantial
factor in the injuries in light of other officials’ conduct and Plaintiff’s own role in continuing
the hunger strike as he experienced negative health effects. See supra Part II.A. For this
reason alone, this portion of Claim Four fails to state a claim. Nevertheless, the Court
additionally considers the recommendation and objection regarding the FTCA’s
misrepresentation exception.
Judge Dominguez Braswell further recommends dismissal of Claim Four to the
extent it asserts a claim for Officer Santistevan’s alleged falsification of food intake
records, because she concludes that the claim falls within the FTCA’s misrepresentation
exception. [Doc. 187 at 13–15]. Plaintiff objects that he has pled a claim for negligence,
not misrepresentation, and the relevant allegations do not meet the elements of a
misrepresentation claim. [Doc. 189 at 3].
As Judge Dominguez Braswell observes, however, the FTCA preserves sovereign
immunity for claims “‘arising out of . . . misrepresentation.” 28 U.S.C. § 2680(h); [Doc.
187 at 14]. A claim may “arise” from misrepresentations even if it is not expressly a
misrepresentation claim. [Doc. 187 at 14 (collecting cases)]; see also, e.g., Abbey v.
United States, 112 F.4th 1141, 1146 (9th Cir. 2024) (“[B]y its plain text, section 2680(h)
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does not merely preclude claims for misrepresentation. Rather, it bars any claim ‘arising
out of’ misrepresentation.”). Even construing Plaintiff’s Objection liberally, he focuses
only on the fact that Claim Four is not pled as a misrepresentation claim. [Doc. 187 at
14–15]. Plaintiff does not dispute Judge Dominguez Braswell’s finding that a claim may
“arise out of” misrepresentations the government makes to itself. [Doc. 187 at 14–15;
Doc. 189 at 3]. And because the Court agrees with Judge Dominguez Braswell that
Officer Santistevan’s alleged falsification of food intake records is the “crux” of this aspect
of Claim Four, see [Doc. 187 at 15 (citing Abbey, 112 F.4th at 1146)], the Court concludes
that any claim based on those falsifications arises out of misrepresentations, see Omegbu
v. United States, 475 F. App’x 628, 629 (7th Cir. 2012) (“Because Omegbu alleged that
federal officials deliberately falsified information in his file, his fraud claim is precisely the
kind barred by the FTCA’s exception for misrepresentation and deceit.”). Accordingly,
the Court concurs with Judge Dominguez Braswell that Claim Four is barred by the
FTCA’s misrepresentation exception insofar as the claim is predicated on Officer
Santistevan’s alleged misrepresentations.
C. Failure to Remove Food Items from Plaintiff’s Cell
The final relevant conduct alleged in Claim Four is Officer Santistevan’s failure to
remove food items from Plaintiff’s cell after the hunger strike began. [Doc. 174 at ¶¶ 19,
64, 141]. Regardless of whether Officer Santistevan’s alleged conduct violates BOP
policy, Judge Dominguez Braswell finds that Plaintiff cannot establish causation because
he “does not tie the alleged violation to any injury.” [Doc. 187 at 16]. Plaintiff objects that
the failure to remove food items must have caused the delay in medical treatment and his
associated injuries, because “medical staff failed to perform the medical assessment
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[during] the period in which [Officer] Santistevan refused to remove the food items.” [Doc.
189 at 3]. Plaintiff emphasizes that other BOP staff removed his food items in the evening
of April 9, 2020, exactly nine meal trays before he received a medical assessment on the
morning of April 13. [Doc. 189 at 3].
The facts cited by Plaintiff demonstrate that the lack of medical attention was
correlated to, not caused by, Officer Santistevan’s failure to remove food items from
Plaintiff’s cell. Nowhere in his Third Amended Complaint does Plaintiff allege that removal
of commissary food items is a prerequisite to a medical assessment, let alone that medical
staff need to wait nine meal trays after removal to perform a medical assessment. The
Objection’s version of the “nine trays” requirement appears to derive from the allegation
that BOP policy considers a prisoner to be on hunger strike “upon missing 9 consecutive
[meal] trays,” at which point staff are allegedly required to take various actions, including
removing food items from the prisoner’s cell. See [Doc. 174 at ¶ 19]. As alleged, that
policy does not support Plaintiff’s assumption that medical staff must wait for food items
to be removed before evaluating an inmate. More importantly, the Third Amended
Complaint already explains that Plaintiff received a medical assessment on the morning
of April 13 because he vomited blood. [Id. at ¶¶ 76–77]. Plaintiff’s factual allegations do
not state or imply that the April 13 medical assessment was in any way prompted by the
belated removal of food items from his cell. And for the reasons explained above, Plaintiff
has not adequately alleged that Officer Santistevan’s conduct was a but-for cause of or
substantial factor in Plaintiff’s injuries in light of Plaintiff’s role in refusing to eat and the
ADX medical staff’s, doctor’s, and warden’s respective roles in determining whether
Plaintiff received medical attention. See supra Part II.A.
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In sum, the Court finds that Plaintiff fails to plausibly allege that Officer
Santistevan’s acts operated in a “natural and continued sequence” to produce Plaintiff’s
injuries. See N. Colo. Med. Ctr., 914 P.2d at 908. Plaintiff protests that Claim Four has
been improperly split into different parts, [Doc. 189 at 3], but the Court only analyzes
Officer Santistevan’s alleged acts separately for clarity. Plaintiff does not explain how
combining Officer Santistevan’s acts into a single analysis would reveal a sufficient
allegation that “but for” the acts, Plaintiff would not have been injured. The Court therefore
OVERRULES the Objection and ADOPTS the Recommendation that Claim Four be
dismissed with prejudice.2
III. Claim Five
Judge Dominguez Braswell recommends that Claim Five be dismissed because
the claim sounds in battery, not negligence, and should be dismissed as duplicative of
Plaintiff’s battery claims. [Doc. 187 at 16–18]. Judge Dominguez Braswell notes that
Claim Five’s allegations of “negligence” all involve the intentional application of excessive
force. [Id. at 17]. Plaintiff objects that a negligence claim may arise from “intentional acts
2 Dismissal with prejudice is appropriate when it is clear the plaintiff cannot plead a
plausible claim for relief and thus amendment would be futile. See Knight v. Mooring
Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014); Gee v. Pacheco, 627 F.3d 1178,
1195 (10th Cir. 2010) (explaining that dismissal without prejudice is appropriate where
plaintiff is “close to stating a claim but [is] missing some important element that may not
have occurred to him” (quotation omitted)). Dismissal with prejudice may also be
appropriate where a plaintiff “has failed to cure pleading deficiencies despite multiple
opportunities to amend.” See Harvey v. Martinez, No. 22-cv-00369-NYW-TPO, 2024 WL
5086080, at *4 n.5 (D. Colo. Dec. 12, 2024) (collecting cases). Here, no additional
allegations of Officer Santistevan’s conduct will alter the fact that the ADX medical staff,
doctor, and warden, in addition to Plaintiff himself, all played greater roles in Plaintiff’s
injuries than Officer Santistevan. And because Plaintiff has failed to cure this deficiency
despite filing four iterations of his complaint, see [Doc. 1; Doc. 36; Doc. 75; Doc. 174], the
Court finds that further amendment of Claim Four would be futile. Dismissal with prejudice
is therefore appropriate.
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or omissions.” [Doc. 189 at 4]. He alternatively argues that the Court should construe
Claim Five as one for “gross negligence.” [Id. at 5].
“Duplicative claims may be dismissed pursuant to Rule 12(b)(6) or may be stricken
pursuant to Rule 12(f) as ‘redundant, immaterial, impertinent, or scandalous’ for the sake
of judicial efficiency.” Hallum v. Four Corners OB-GYN, No. 17-cv-00007-MV-SCY, 2019
WL 1242237, at *6 (D.N.M. Mar. 18, 2019). “Claims are duplicative when they are
substantially the same as other claims in the suit.” Id. (quotation omitted). “To determine
the nature of a claim, courts examine the substance of a plaintiff’s allegations, not merely
the labels applied to them.” Johnson v. Dep’t of Veterans Affs., 351 F. App’x 288, 290
(10th Cir. 2009). “[A] mere allegation of negligence does not turn an intentional tort into
negligent conduct.” Benavidez v. United States, 177 F.3d 927, 931 (10th Cir. 1999)
(noting that the focus is “not on the label the plaintiff uses, but on the conduct upon which
he premises his claim as supported by the record”).
Plaintiff argues that he may bring a negligence claim based on “intentional acts or
omissions” without the claim arising out of battery. [Doc. 189 at 4]. Negligence claims
can and do involve intentional acts. But this misses the distinction drawn by Judge
Dominguez Braswell that, unlike battery, the “defining feature of a negligence claim is that
the ultimate result—that is, the ultimate injury—is unintended.” [Doc. 187 at 17 (citations
omitted)]. Under Colorado law, a battery claim requires that “the actor desired to cause
offensive or harmful consequences” through contact with the plaintiff. White v. Muniz,
999 P.2d 814, 816, 819 (Colo. 2000). Negligence, on the other hand, “consists of a failure
to exercise reasonable care in order to protect others from harm.” United Blood Servs. v.
Quintana, 827 P.2d 509, 523 (Colo. 1992); see also Victor Coal Co. v. Muir, 38 P. 378,
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385 (Colo. 1894) (“‘[N]egligence’ means ‘inadvertence’ or ‘carelessness.’”). In other
words, if the “substance” of Claim Five involves an intentionally harmful contact to
Plaintiff, the claim sounds in battery.
Turning to Plaintiff’s factual allegations, the Court agrees with Judge Dominguez
Braswell that the substance of Claim Five is a claim for battery. Claim Five arises from
allegations that Officer Santistevan “excessively” tightened Plaintiff’s restraints in an act
of “brutality,” causing “excruciating pain.” [Doc. 174 at ¶¶ 148–50]. When Plaintiff
protested that the restraints were too tight, Officer Santistevan told him to “shut up” in a
“threatening [tone],” then “jerked” Plaintiff up by his waist chain before “aggressively
lift[ing]” Plaintiff up and “forc[e]fully [throwing]” him down on a bed in the medical unit. [Id.
at ¶¶ 151–58]. Officer Santistevan also told Plaintiff, “I told you, [we] weren’t gonna make
it easy for you.” [Id. at ¶ 156]. Plaintiff alleges that Officer Santistevan used the tightened
restraints as a “method of punishing [him].” [Id. at ¶ 162]. These allegations plainly
demonstrate that Claim Five turns on Officer Santistevan’s intentional harmful contact
with Plaintiff, as opposed to mere carelessness.
Plaintiff’s alternative argument, that the Court should construe his claim as one for
gross negligence, cannot sidestep the fundamental distinction between negligence and
battery. Plaintiff has carefully used the words “willful and wanton,” rather than
“intentional,” to describe Officer Santistevan’s use of force. See [Doc. 174 at ¶¶ 154–
158]. But the underlying factual allegations describe an intentional harmful contact—the
hallmark of battery, Muniz, 999 P.2d at 816—whereas gross negligence “describe[s]
conduct that is more than negligent and less than intentional,” Pfantz v. Kmart Corp., 85
P.3d 564, 568 (Colo. App. 2003); see also White v. Hansen, 837 P.2d 1229, 1233 (Colo.
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1992) (en banc) (reiterating that a gross negligence claim “is not the equivalent of an
allegation of willful or intentional injury”). Aside from the labels used to characterize
Officer Santistevan’s conduct, Plaintiff does not dispute Judge Dominguez Braswell’s
conclusion that the “substance” of Claim Five remains an allegation of intentional force
against Plaintiff. As Judge Dominguez Braswell observes, Plaintiff’s battery claims rely
on the same factual allegations as Claim Five. [Doc. 187 at 18]; see also [Doc. 174 at
¶¶ 171–73 (incorporating [id. at ¶¶ 143–70])]. Based on these allegations, the Court
concludes the substance of Claim Five is substantially the same as Plaintiff’s battery
claims. See Hallum, 2019 WL 1242237, at *6.
Because Claim Five alleges intentional harmful contact rather than negligence, the
claim fails to plausibly allege negligence and is duplicative of Plaintiff’s battery claims.
The Court respectfully OVERRULES Plaintiff’s Objection with respect to Claim Five and
ADOPTS the Recommendation that Claim Five be DISMISSED with prejudice.
IV. Claims Eight and Ten
Claims Eight and Ten allege that Lieutenant Medrano and Warden True failed to
intervene when Officer Santistevan violated BOP regulations by failing to remove
Plaintiff’s commissary food from his cell, failing to refer Plaintiff to medical staff at the
beginning of his hunger strike, and by falsifying Plaintiff’s food intake records. [Doc. 174
at ¶¶ 174–79, 185–88]. Plaintiff also alleges Lieutenant Medrano failed to intervene when
Officer Santistevan used excessive force against him. [Id. at ¶ 177]. These claims
repackage Plaintiff’s previously dismissed failure-to-supervise claims. See [Doc. 187 at
20; Doc. 123 at 23–26]. Where Plaintiff previously alleged that Lieutenant Medrano and
Warden True failed to appropriately supervise Officer Santistevan, [Doc. 75 at ¶¶ 217–
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18], he now alleges that these officers failed to intervene in their subordinate’s alleged
misconduct, [Doc. 174 at ¶¶ 174–79, 185–88]; see also [Doc. 189 at 5 (describing Claims
Eight and Ten as “failure to protect and to intervene”). Given that this Court found the
FTCA’s discretionary function exception bars Plaintiff’s failure-to-supervise claims, [Doc.
123 at 23–26], Judge Dominguez Braswell recommends that the failure-to-intervene
claims in Claims Eight and Ten be dismissed pursuant to the discretionary function
exception as well, [Doc. 187 at 20–21].
The discretionary function exception retains sovereign immunity against tort claims
“based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty.” 28 U.S.C. § 2680(a). The discretionary function applies
if both parts of a two-pronged test are satisfied. Ohlsen v. United States, 998 F.3d 1143,
1160–61 (10th Cir. 2021) (citing Berkovitz v. United States, 486 U.S. 531 (1988)). First,
courts “consider ‘whether the action is a matter of choice for the acting employee.’” Id.
(quoting Berkovitz, 486 U.S. at 536). An employee has no choice “when a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to follow.”
Berkovitz, 486 U.S. at 536. Second, if the action was a matter of choice, courts ask
“whether that judgment is of the kind that the discretionary function exception was
designed to shield.” Id. Because the discretionary function exception was designed to
insulate policy decisions, the second-prong analysis looks to “whether the nature of the
actions taken implicate public policy concerns, or are susceptible to policy analysis.”
Ohlsen, 998 F.3d at 1161 (quotation omitted). As the party asserting federal jurisdiction,
Plaintiff bears the burden of establishing that either prong has not been met. Sydnes v.
United States, 523 F.3d 1179, 1183 (10th Cir. 2008).
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Plaintiff’s Objection focuses only on the first prong of Berkovitz. [Doc. 189 at 5–7].
Judge Dominguez Braswell observes that “[o]ther than what was already rejected in prior
orders, Plaintiff does not cite any statute, regulation, or policy that specifically directs Lt.
Medrano or Warden True as it concerns the supervision of their staff.” [Doc. 187 at 20
(citations omitted)]. Plaintiff’s Objection does not address this deficiency and fails to
identify any federal regulations or policies that would have required Lieutenant Medrano
or Warden True to supervise Officer Santistevan in a particular manner. See generally
[Doc. 189]. Instead, Plaintiff reiterates a theory rejected by Judge Dominguez Braswell:
that Colorado’s special relationship doctrine requires prison officials to intervene on
Plaintiff’s behalf. [Doc. 187 at 20–21; Doc. 189 at 6–7]. Plaintiff is correct that Colorado
tort law sometimes imposes a duty on an actor to protect a person with whom he shares
a “special relationship.” See Solano v. Goff, 985 P.2d 53, 54 (Colo. App. 1999) (citing
Davenport v. Cmty. Corr. of Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998)). But for
purposes of the discretionary function exception, Plaintiff must identify a “federal statute,
regulation, or policy” that requires the relevant federal officials to act. Berkovitz, 486 U.S.
at 536 (emphasis added). “Considering state tort law as a limit on the federal
government’s discretion at the jurisdictional stage impermissibly conflates the merits of
plaintiffs’ claims with the question whether the United States has conferred jurisdiction on
the courts to hear those claims in the first place.” Sydnes, 523 F.3d at 1184. Accordingly,
Plaintiff cannot invoke Colorado tort law to demonstrate that Lieutenant Medrano’s and
Warden True lacked discretion in supervising their subordinate. See id.
Because Plaintiff does not contest that BOP officials’ supervision of their
subordinates is “susceptible to policy analysis,” Ohlsen, 998 F.3d at 1161 (quotation
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omitted), the Court need not address the second Berkovitz prong here, see also [Doc.
123 at 25–26 (finding that prison security and supervision of correctional officers are
grounded in policy and satisfy second Berkovitz prong)]. Plaintiff therefore fails to carry
his burden to establish that the discretionary function exception does not apply. Claims
Eight and Ten are therefore barred by the FTCA. See Garcia v. U.S. Air Force, 533 F.3d
1170, 1175–76 (10th Cir. 2008) (“If the discretionary function exception applies to the
challenged conduct, the United States retains its sovereign immunity and the district court
lacks subject matter jurisdiction to hear the suit.” (quotation omitted)). The Court therefore
OVERRULES the Objection and ADOPTS the Recommendation that Claims Eight and
Ten be DISMISSED with prejudice.3
3 “Jurisdictional dismissals ordinarily should be entered without prejudice.” Barnes v.
United States, 776 F.3d 1134, 1151 (10th Cir. 2015) (emphasis omitted). Dismissal with
prejudice may be appropriate, however, when the jurisdictional question is intertwined
with the merits of the claim, such that the motion to dismiss can be construed as a motion
to dismiss for failure to state a claim under Rule 12(b)(6). See Blackburn v. United States,
No. 20-8005, 2021 WL 3027979, at *7–8 (10th Cir. July 19, 2021) (citing Bell v. United
States, 127 F.3d 1226, 1228 (10th Cir. 1997)). The Tenth Circuit has recognized that
application of the discretionary function exception intertwines with the merits of the
underlying claim. See Garcia, 533 F.3d at 1176; Awad v. United States, 807 F. App’x
876, 878 (10th Cir. 2020) (noting that district court “correctly” converted Rule 12(b)(1)
motion invoking discretionary function exception); cf. Blackburn, 2021 WL 3027979, at *8
(construing motion to dismiss pursuant to intentional torts exception as a Rule 12(b)(6)
motion). “When ‘it is patently obvious that a plaintiff cannot proceed with her claims, and
any further opportunity to amend would be futile because her claims would still be barred,’
dismissal with prejudice is appropriate.” Blackburn, 2021 WL 3027979, at *8 (brackets
omitted) (quoting Knight, 749 F.3d at 1190–). Here, Plaintiff has filed four iterations of his
complaint, [Doc. 1; Doc. 36; Doc. 75; Doc. 174], and this Court has twice found that he
fails to allege a failure-to-supervise claim that is not barred by the discretionary function
exception, see [Doc. 123 at 23–26]. He has not requested leave to amend, and there is
no indication that a fourth amended complaint would identify any federal regulations or
policies that render any supervisory actions non-discretionary. The Court therefore
concludes that further amendment would be futile and dismissal with prejudice is
appropriate. See, e.g., Melnick v. Johnston, No. 19-cv-00154-CMA-KLM, 2022 WL
1266614, at *2 (D. Colo. Apr. 28, 2022) (finding dismissal with prejudice appropriate
where plaintiff failed to cure pleading deficiencies despite multiple opportunities).
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CONCLUSION
For the above reasons, IT IS ORDERED that:
(1) Plaintiff’s Objection to the Magistrate Judge’s Recommendation [Doc. 189]
is OVERRULED;
(2) The Recommendation of United States Magistrate Judge [Doc. 187] is
ADOPTED;
(3) Defendant’s Partial Motion to Dismiss Third Amended Complaint [Doc. 177]
is GRANTED;
(4) Claims Four, Five, Eight, and Ten of Plaintiff’s Third Amended Complaint
[Doc. 174] are DISMISSED with prejudice;
(5) Claims Six and Seven and Claim Nine of Plaintiff’s Third Amended
Complaint [Doc. 174] remain;
(6) This matter is REFERRED to Judge Dominguez Braswell to conduct a
Status and/or Scheduling Conference; and
(7) The Clerk of Court is DIRECTED to mail a copy of this Order to:
Khalfan Khamis Mohamed
#44623-054
Florence High
U.S. Penitentiary
Inmate Mail/Parcels
P.O. Box 7000
Florence, CO 81226
DATED: March 28, 2025 BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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