Pittman v. Pickett et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-02566-KAS
EMANUEL PITTMAN,
Plaintiff,
v.
PICKETT, C/O,
FONTEROT, C/O,
PLATO, C/O,
CROSS, C/O,
MILES, C/O,
GONZALES, Sgt.,
WHITFIELD, Sgt.,
ROETHER, Capt.,
MOLELLO, C/O,
HEISMAN, Lt.,
CORDOVA, Major, and
JANE DOE, Nurse,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendants’ Partial Motion to Dismiss [#24]1
(the “Motion”). Plaintiff, who proceeds as a pro se litigant,2 filed a Response [#26] in
1 “[#24]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Order.
2 The Court must liberally construe the filings of a pro se litigant “so as to do justice.” See Fed. R.
Civ. P. 8(e); Haines v. Kerner, 404 U.S. 519, 521 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Accordingly, the Court may not “supply additional factual allegations to round
out [a pro se litigant’s] complaint or construct a legal theory on [his] behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1174 (10th Cir. 1997) (citing Hall, F.2d at 1110). Further, pro se litigants
are subject to the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d
1276, 1277 (10th Cir. 1994).
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opposition to the Motion [#24], and Defendants filed a Reply [#27]. The Court has
reviewed the briefs, the entire case file, and the applicable law.3 For the reasons set forth
below, the Motion [#24] is GRANTED.
I. Background4
Plaintiff is an incarcerated person with the Colorado Department of Corrections
(“CDOC”).5 Am. Compl. [#10] at 2, 10. All Defendants were prison staff of CDOC at the
time of the incident. Id. at 2-3, 7-8. In the present Motion [#24], Defendants Gonzales,
Whitfield, Pickett, Fontenot, Plato, Cross, Miles, Heisman, Cordova, and Gomez seek
dismissal of Plaintiff’s excessive force claim against them.6 Motion [#24] at 4. Further,
Defendants Gonzales, Whitfield, Pickett, Fontenot, Plato, Cross, and Miles seek dismissal
of the failure-to-intervene claim against them. Id. at 3. Defendants Molello and Roetker
do not seek dismissal of the claims against them except to the extent Plaintiff seeks
injunctive relief and seeks monetary damages from them in their official capacities. Id. at
1, 4-6.
The Amended Complaint [#10] indicates that all claims arise out of a single event,
although the Court notes that the complaint is not a model of clarity regarding which
3 This case has been referred to the undersigned for all purposes pursuant to 28 U.S.C. § 636(c),
on consent of the parties. See [#15, #18, #19]; Reassignment [#28].
4 In determining whether an operative complaint states a claim for relief, the Court views the
allegations in a light most favorable to the plaintiff, as the non-moving party. Abdi v. Wray, 942
F.3d 1019, 1025 (10th Cir. 2019).
5 Plaintiff does not allege at which specific CDOC facility the events underlying this lawsuit
occurred.
6 Defendants state that “Fonterot, C/O” is spelled “Fontenot,” “Roether, Capt.” is spelled “Roetker”
and “Jane Doe Nurse” is Nia Gomez. Motion [#24] at 1 n.1-3. Plaintiff does not object to these
spelling corrections or the identification of “Jane Doe Nurse” and adopts these spellings/names
in his Response. See, e.g., Response [#26] at 2. Accordingly, the Court does so here as well.
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parties were present during various points of the incident. On May 23, 2022, Plaintiff was
approached by Defendants Gonzales and Gomez, who informed him that he must submit
to a “TB shot.”7 Am. Compl. [#10] at 4. Plaintiff refused and informed them that he believed
the shot would cause him to get sick. Id. After this exchange, Defendants Gonzales and
Gomez left. Id. Defendants Gonzales and Heisman later came and told Plaintiff that he
had to consent to the shot or else there would be a “force cell.” Id. Plaintiff repeated his
concerns that he believed the shot would cause him to become sick, requested to not be
sprayed with oleoresin capsicum (“OC spray”)8 due to his asthma and informed them that
he “don’t care” about potentially being extracted from the cell. Id.
Approximately an hour later, Defendant Roetker arrived with a video camera, OC
spray, and a “team in black.”9 Id. Defendant Roetker recorded Plaintiff saying that he
believed the shot would cause him to become sick and that he was restricted from
receiving OC spray due to his asthma and bronchitis. Id. Plaintiff alleges that all
Defendants had access to his medical restrictions. Id. Plaintiff states that Defendant
7 Plaintiff refers to the “TB shot” interchangeably as “TB test.” Am Compl. [#10] at 4. Given the
context, the Court interprets this to refer to a tuberculosis injection; however, the precise
meanings of these terms do not materially impact the Court’s adjudication of the Motion [#24].
8 Defendants clarify Plaintiff’s reference to “OC” as oleoresin capsicum. Motion [#24] at 2; see
Am. Compl. [#10] at 4. Plaintiff does not object to this definition of OC in his Response. Response
[#26] at 2. Accordingly, the Court adopts this definition here as well. See also Gargan v. Gabriel,
50 F. App’x 920, 922 (10th Cir. 2002) (noting that oleoresin capsicum is “commonly known as
pepper spray”).
9 Plaintiff does not specifically state which Defendants were part of the “team in black.” See Am.
Compl. [#10]. However, from his Response [#26], the Court understands that Defendant Roetker’s
team in black included Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, Whitfield,
and Molello. Response [#26] at 1-2, 12; Am. Compl. [#10] at 10.
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Roetker provided the order to spray Plaintiff and that Defendant Molello then sprayed
him.10 Id.; see Response [#26] at 1-2.
Plaintiff asserts that all Defendants used excessive force against him in violation
of his Eighth Amendment rights. Am. Compl. [#10] at 4. He is suing all Defendants in their
individual and official capacities. Id. at 2-3, 7-8. Plaintiff also appears to assert a failure-
to-intervene claim under the Eighth Amendment against Defendants Pickett, Fontenot,
Plato, Cross, Miles, Gonzales, and Whitfield. Id. at 12. Both claims arise out of the single
event during which Defendant Molello, at the order of Defendant Roetker, sprayed Plaintiff
with OC spray in the presence of other Defendants. Id. at 4.
Plaintiff seeks both monetary and injunctive relief. Am. Compl. [#10] at 6. Plaintiff
seeks millions of dollars in damages. Id. at 6, 14. Plaintiff does not specify whether this
relief is sought in connection with his claims against Defendants in their official or
individual capacities, and therefore the Court addresses the claims for monetary relief
against Defendants in both capacities. Id. Plaintiff further seeks an injunction directing his
transfer to an out-of-state prison. Id. Plaintiff reasons that this relief is necessary because
three unidentified prison facilities have all “violated” him. Id.
II. Standard of Review
A. 	Fed. R. Civ. P. 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
10 In the Amended Complaint [#10], Plaintiff states “They spray my eyes, mouth & my nose.” Am.
Compl. [#10] at 2. In the Response [#26], Plaintiff clarifies that Defendant Molello was the only
Defendant to physically administer the OC spray. Response [#26] at 2. As noted above, neither
Defendant Roetker nor Defendant Molello are seeking dismissal of Plaintiff’s claims against them,
except to the extent that Plaintiff seeks injunctive relief and seeks monetary damages from them
in their official capacities.
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1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). Because federal courts are
tribunals of limited jurisdiction, the Court must establish a statutory basis to exercise
jurisdiction. Fed. R. Civ. P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
The Court may only exercise jurisdiction “in the presence rather than the absence of
statutory authority.” Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (quoting
Wyeth Lab’ys. v. U.S. Dist. Ct., 851 F.2d 321, 324 (10th Cir. 1988)). “The party invoking
federal jurisdiction has the burden to establish that it is proper, and there is a presumption
against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th
Cir. 2014) (internal quotation marks omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen
Enters., II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially
attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2)
go beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs.,
Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). “When resolving a facial attack on
the allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff, 65 F.4th at 507 (citing Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995)). “When the moving party attacks the factual basis for subject matter
jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the factual
allegations in the complaint but may consider evidence to resolve disputed jurisdictional
facts.’” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272,
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1275 (10th Cir. 1997)). “Reference to evidence outside the pleadings does not convert
the motion to dismiss into a motion for summary judgment[.]” SK Fin. SA, 126 F.3d at
1275. “In such instances, a court has discretion to consider affidavits and other
documents to resolve the jurisdictional question.” Graff, 65 F.4th at 507 (citing Holt, 46
F.3d at 1003).
B. 	Fed. R. Civ. P. 12(b)(6)
When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court tests
“the sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted”). For a pleading to survive a motion to dismiss, the plaintiff
must have pled facts which, when taken as true, “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, (2007)). In addition, the factual allegations must be sufficient to “raise
a right to relief above the speculative level.” Bell Atl. Corp., 550 U.S. at 555. “[T]he tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S at 678.
III. Analysis
A. 	Official Capacity Claims
Pursuant to the Eleventh Amendment, Defendants request dismissal of Plaintiff’s
claims against them for lack of subject matter jurisdiction to the extent the claims are
asserted against them in their official capacities seeking monetary damages. Motion [#24]
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at 5-6. The Court agrees with their argument and, in addition, notes that Plaintiff’s request
for declaratory relief and injunctive relief against Defendants in their official capacities is
also barred by the Eleventh Amendment, for the reasons stated below.
Suits against persons in their official capacities are to be treated as suits against
the State. Hafer v. Melo, 502 U.S. 21, 25 (1991). In other words, the interested party is
not the named official but rather the governmental entity of which the defendant is an
officer or agent. Id. Thus, the immunities available to persons sued in their official
capacities are those possessed by the governmental entity. Id.
Regarding damages, “absent waiver by the State or valid congressional override,
the Eleventh Amendment bars a damages action against a State in federal court. This
bar remains in effect when State officials are sued for damages in their official capacity.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985) (citation omitted). Section 1983 does not
abrogate a State’s Eleventh Amendment immunity. Id. at 169 n.17. Here, Plaintiff has not
directed the Court’s attention to, and the Court is not independently aware of, an
applicable “waiver by the State or valid congressional override” of state sovereign
immunity. See id. at 169. Thus, Plaintiff’s claims seeking monetary damages against
Defendants in their official capacities must be dismissed without prejudice based on lack
of subject matter jurisdiction.
Regarding declaratory relief, Plaintiff states that he seeks a “declaration that the
acts & omissions described herein violated his rights under the Constitution & laws of the
United States.” Am. Compl. [#10] at 6. Ex parte Young provides a narrow exception to the
general rule that the Eleventh Amendment bars declaratory relief against state officials in
their official capacities. McGoffney v. Rahaman, No. 23-1060, 2023 WL 6890917, at *4
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(10th Cir. Oct. 19, 2023). Relief may be obtained when a plaintiff alleges “an ongoing
violation of federal law” and only “seek[s] relief properly characterized as prospective.”
Chilcoat v. San Juan County, 41 F.4th 1196, 1213-15 (10th Cir. 2022) (citation omitted).
“Ex parte Young may not be used to obtain a declaration that a state officer has violated
a plaintiff’s federal rights in the past.” Id. (citation omitted). Here, Plaintiff does not seek
declaratory 	relief 	properly 	characterized 	as 	prospective; 	rather, 	he 	only 	seeks 	a
declaration that his rights were violated in the past. Thus, Plaintiff’s claims seeking
declaratory relief against Defendants in their official capacities must be dismissed without
prejudice based on a lack of subject matter jurisdiction.
Regarding injunctive relief, Plaintiffs seeks an order requiring him to be moved “to
a[n] out of state prison because the new prison has violated me as well [as] all 3 prison[s]
sent to” [sic].” Am. Compl. [#10] at 6. As with requests for declaratory relief against officers
in their official capacities, Eleventh Amendment sovereign immunity bars injunctive relief
unless predicated on the Ex parte Young exception for a plaintiff who alleges an ongoing
violation of federal law and who seeks relief properly characterized as prospective.
Chilcoat, 41 F.4th at 1213-14. Here, Plaintiff seeks relief which may be properly
characterized as prospective, i.e., a move to an out-of-state prison facility. Am. Compl.
[#10] at 6. However, the Amended Complaint [#10] contains no allegations of a continuing
controversy arising from an ongoing failure by Defendants to follow the rules. The alleged
event underlying this lawsuit was a discrete incident occurring on one day, May 23, 2022.
There is no indication that Defendants are engaging in repeated violation of Plaintiff’s
constitutional rights along the lines of what is alleged here. Similarly, although Plaintiff
states that his rights have been violated at three different facilities in which he has been
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incarcerated, he provides no details explaining that his rights have repeatedly been
violated in ways that are similar to what has been alleged here. Thus, because Plaintiff
has failed to allege an ongoing violation of federal law, his claims seeking injunctive relief
against Defendants in their official capacities must be dismissed without prejudice based
on a lack of subject matter jurisdiction.
Accordingly, Plaintiff’s claims against Defendants in their official capacities are
dismissed without prejudice based on Eleventh Amendment immunity. See, e.g.,
Martinez v. Martinez, 62 F. App’x 309, 314-15 (10th Cir. 2003) (stating that claims
dismissed for lack of jurisdiction must be dismissed without prejudice) (citing Hollander v.
Sandoz Pharm. Corp., 289 F.3d 1193, 1216 (10th Cir. 2002) (holding that the lower court’s
jurisdictional ruling, which did not address the claim’s merits, should have been dismissed
without prejudice), cert. denied, 537 U.S. 1088 (2002)).
B. 	Individual Capacity Claims
1. 	Declaratory and Injunctive Relief
To the extent that Plaintiff may be attempting to sue Defendants in their individual
capacities for declaratory and/or injunctive relief, his claims must fail. “Under § 1983, a
plaintiff cannot sue an official in their individual capacity for injunctive or declaratory relief.”
Chilcoat, 41 F.4th at 1214.
Accordingly, Plaintiff’s claims against Defendants in their individual capacities
seeking declaratory and/or injunctive relief are dismissed with prejudice. See, e.g.,
Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990) (holding that dismissal
with prejudice is appropriate where the plaintiff could not correct the defect in the claim
by filing an amended complaint).
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2. 	Monetary Relief
With the exception of Defendants Molello and Roetker, Defendants assert the
affirmative defense of qualified immunity. Motion [#24] at 13. Qualified immunity protects
defendant officials from monetary damages when they are sued in their individual
capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982). This affirmative
defense protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). When a defendant asserts qualified immunity
at the motion to dismiss stage, the burden shifts to the plaintiff to show that the
defendant’s conduct, as alleged in the complaint, (1) violated a constitutional or statutory
right that was clearly established at the time of the conduct, and (2) the constitutional or
statutory right would have been known to a reasonable person in the defendant official’s
position. Harlow, 457 U.S. at 818. “[C]learly established law must be ‘particularized’ to the
facts of the case” and should not be defined “at a high level of generality.” White v. Pauly,
580 U.S. 73, 79 (2017). If the plaintiff fails to demonstrate either requirement, the court
must grant the defendant qualified immunity and need not undertake additional analysis.
Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
a. 	Excessive Force
Plaintiff’s excessive force claim is asserted against all Defendants. As previously
noted, Defendants Molello and Roetker do not seek dismissal of this claim against them
to the extent Plaintiff seeks monetary damages.
The remaining Defendants, Pickett, Fontenot, Plato, Cross, Miles, Gonzales,
Whitfield, Heisman, Cordova, and Gomez, all seek dismissal of this claim, arguing that
Plaintiff has failed to allege their personal participation in the alleged use of force by
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Defendant Molello, as allegedly ordered by Defendant Roetker. They assert this on the
basis that they were either not present at the incident, did not order the use of force,
and/or did not actually participate in the alleged use of force. Motion [#24] at 7-10. Plaintiff
responds that they are all liable for the excessive force because Defendant Molello could
not have proceeded to use force without his team as back-up, because they could have
stopped the use of force by checking the computer to see that Plaintiff was OC restricted,
or they had to approve the use of force based on the chain of command. Response [#26]
at 1-3.
“[C]laims of excessive force involving convicted prisoners arise under the Eighth
Amendment.” Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014). Under the
Eighth Amendment, “[a]n excessive-force claim has two elements: (1) an objective
element requiring 	that 	the alleged 	wrongdoing be harmful 	enough to establish a
constitutional violation; and (2) a subjective element requiring the plaintiff to show that the
officials acted with a sufficiently culpable state of mind.” Ezell v. Hininger, No. 23-7007,
2024 WL 1109057, at *2 (10th Cir. Mar. 14, 2024) (citing Redmond v. Crowther, 882 F.3d
927, 936 (10th Cir. 2018)). “An official’s state of mind is sufficiently culpable ‘if he uses
force maliciously and sadistically for the very purpose of causing harm, rather than in a
good faith effort to maintain or restore discipline.’” Id. (quoting Redmond, 882 F.3d at 936)
(internal quotation marks omitted). Here, Defendants have not contested that Plaintiff has
adequately alleged the first, objective element of this claim.
Before turning to the details of Plaintiff’s allegations against each Defendant, the
Court notes that the use of OC/pepper spray is not per se unconstitutional. “The use of
pepper spray ‘constitutes a significant degree of force’ and can in certain cases form the
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basis of a constitutional violation.” Quinones v. Rollison, No. 18 Civ. 1170 (AJN), 2020
WL 6420181, at *4 (S.D.N.Y. Nov. 1, 2020) (quoting Tracy v. Freshwater, 623 F.3d 90,
98 (2d Cir. 2010)). However, in many instances, the use of OC spray is permissible to
coerce compliance with lawful orders. Compare Mecham v. Frazier, 500 F.3d 1200, 1204-
05 (10th Cir. 2007) (holding that the officers’ use of pepper spray was not unreasonable
where the plaintiff refused to obey repeated officer instructions to exit her car during a
fifty-minute standoff) and Green v. Corr. Corp. of Am., 401 F. App’x 371, 376 (10th Cir.
2010) (finding that a prison official’s use of pepper spray to subdue the prisoner-plaintiff
during an altercation with another prisoner did not amount to an excessive force claim)
with DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir. 2001) (stating that a prison official
would act maliciously and sadistically by indiscriminately spraying pepper spray along a
prison tier as a practical joke); see also Lehman v. McKinnon, No. 18-cv-00952-PAB-
NRN, 2020 WL 6119537, at *4 (D. Colo. July 7, 2020) (collecting pepper spray cases in
the Eighth Amendment context).
Regarding Defendant Cordova, Plaintiff states that he held the rank of major and
was a supervisor over captains, lieutenants, sergeants, and correctional officers at the
prison. Am. Compl. [#10] at 8. Plaintiff alleges that he was “the one in charge of the
assembly of this team” and that “without his approval this would [have] never happened.”
Id. at 11. Plaintiff states that Defendant Cordova “had available info on the computer &
still gave approval for this team to use OC” on him, “a prisoner with breathing issues.” Id.
Regarding Defendant Heisman, Plaintiff states that he held the rank of lieutenant
and was a supervisor over sergeants and correctional officers. Id. at 8. Plaintiff states that
he came to the cell with either Defendant Gonzales or Defendant Whitfield, and
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Defendant Heisman asked, “why are you rebelling against everything, they going to get
this test with your permission or a force cell.” Id. at 4. Plaintiff explained to them, “I think
that shit makes me sick, not taking it, & as long as you don’t OC me I got asthma I don’t
care.” Id. at 4, 11. Plaintiff further alleges that Defendant Heisman “had available info on
the computer about me being OC restricted & had a moral obligation to pass this info on
to Capt. Roetker,” but that he ignored Plaintiff, thus violating CDOC policy. Id. at 11.
Regarding Defendant Gomez, Plaintiff states that she was medical staff holding
the title of nurse. Id. at 8. Plaintiff alleges that she “had all available access to the full
scope of all my medical files & history,” but “[e]ven with this info, Nurse made a conscious
decision to not relay the info to this cell extraction team.” Id. at 11. Further, Plaintiff states
that he told her “in front of either Sgt. Gonzales or Sgt. Whitfield” that he had asthma. Id.
He said he again told her that he had asthma when the team was assembled in front of
his cell. Id. He asserts that “[t]here can be no excuse for this Nurse to let this CDOC policy
be violated & they use OC on me.” Id.
Regarding Defendant Whitfield, Plaintiff states that he held the rank of sergeant
and was a supervisor over correctional officers. Id. at 8. Plaintiff alleges that he “either
was in black at which case heard me say had asthma. Or was with the Nurse when I said
I have asthma.” Id. at 12. Plaintiff states that, “[e]ither way, this defendant had a moral
obligation to go check the computer to see if I was OC restricted” and that, “[b]y not doing
so violating CDOC policy to not use OC on prisoners with breathing issues.” Id.
Regarding Defendant Gonzales, Plaintiff states that he held the rank of sergeant
and was “[s]taff at prison in charge of people safety.” Id. at 7. Plaintiff alleges that he “had
available info on the computer about me being OC restricted giving them a moral
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obligation to follow CDOC policy & not use OC on me.” Id. at 10. He asserts that he “told
this defendant either with the Nurse & Lt. present or in front of the cell in black” that he
had asthma, but that Defendant Gonzales ignored him. Id.
Regarding Defendants Pickett, Fontenot, Plato, Cross, and Miles, Plaintiff asserts
that each held the rank of correctional officer. Id. at 2-3, 7. Plaintiff alleges that all five
“had available info on the computer about me being OC restricted giving them a moral
obligation to follow CDOC policy & not use OC on me.” Id. at 9-10. Plaintiff further alleges
that he told all of them “in front of the cell” that he had asthma. Id.
In Gargan v. Gabriel, 50 F. App’x 920, 923 (10th Cir. 2002), the Tenth Circuit Court
of Appeals held in an unpublished case that the use of four cans of OC spray on a prisoner
who was unarmed, alone, and secure in a segregation cell during a cell extraction by
defendants who had knowledge of the plaintiff’s medical condition, i.e., chronic heart
disease, did not constitute a violation of his Eighth Amendment right to be free from
excessive force. The Circuit Court stated that, “[i]n order to state a claim for excessive
use of force, [the plaintiff] must show the defendants ‘acted maliciously and sadistically
for the very purpose of causing harm rather than in a good-faith effort to maintain or
restore discipline.’” Gargan, 50 F. App’x at 923 (quoting Mitchell v. Maynard, 80 F.3d
1433, 1440 (10th Cir. 1996)). The Circuit Court further noted that “[t]his standard is
appropriate 	‘regardless 	of 	whether 	the 	corrections 	officers 	are 	quelling 	a 	prison
disturbance or merely trying to maintain order.’” Id. (quoting Mitchell, 80 F.3d at 1440
(quotation marks and citation omitted)). In affirming the district court’s holding that the
plaintiff had failed to state a claim based on use of excessive force, the Circuit Court
observed that “[n]owhere does the complaint allege facts sufficient to support a reliable
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inference that pepper spray was used on [the plaintiff] unnecessarily, excessively, or
wantonly. There are simply no facts at all discussing the need, or lack thereof, to use
pepper spray in extracting [the plaintiff] from his cell.” Id.
“To determine whether prison officials applied force maliciously and sadistically or,
rather, in good faith, [the Court] consider[s] (1) the need for the force, and (2) whether the
officers used a disproportionate amount of force.” Redmond, 882 F.3d at 937. Here, there
was a clear need for force given that Plaintiff was refusing to obey orders and essentially
told officers that they would have to do a force cell. See Am. Compl. [#10] at 4. “[P]risoners
cannot be permitted to decide which orders they will obey, and when they will obey them.”
Redmond, 882 F.3d at 938 (citation and internal quotation marks omitted). In fact, Plaintiff
does not take issue with the cell extraction itself in his Amended Complaint [#10]. See
[#10] at 4, 9.
Rather, Plaintiff asserts that the force used to perform the cell extraction was
excessive because Defendants used OC spray on him despite his diagnosed asthma and
bronchitis. See id. Thus, he appears to argue that the officers used a disproportionate
amount of force. See id. However, particularly considering Gargon, the Court can
reasonably deduce that the moving Defendants, i.e., all those other than Defendants
Molello and Roetker, despite allegedly having access to Plaintiff’s medical records and
despite allegedly being present for the use of the OC spray during the cell extraction, did
not violate Plaintiff’s constitutional rights, especially where none directly used or ordered
this force to be used against Plaintiff. See Estate of Booker v. Gomez, 745 F.3d 405, 422
(10th Cir. 2014) (citing Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011) (“[A] police
officer may be responsible for another officer’s use of excessive force if the officer . . .
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actively participated in the use of excessive force.” (quotations omitted) (emphasis
added)). This finding similarly applies with even more force to the moving Defendants
who allegedly had access to the prisoner’s medical records but who were not present for
the use of the OC spray during the cell extraction. See id. In short, the Court is persuaded
that Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, Whitfield, Heisman,
Cordova, and Gomez did not maliciously and sadistically engage in excessive force. See
Redmond, 882 F.3d at 936 (noting that an official’s state of mind is sufficiently culpable
only “if he uses force maliciously and sadistically for the very purpose of causing harm,
rather than in a good faith effort to maintain or restore discipline”) (internal quotation
marks and citation omitted).
However, even assuming that Plaintiff had adequately alleged an excessive force
claim, the Court finds that his claim against these Defendants fails on the second prong
of the qualified immunity analysis, i.e., on whether there was a clearly established
statutory or constitutional right that was violated on May 23, 2022, the date of the cell
extraction. Am. Compl. [#10] at 4. “To establish that the law was clearly established . . . ,
the plaintiff must point to Supreme Court or [published] Tenth Circuit precedents [o]n
point, or to the clear weight of authority from other circuit courts deciding that the law was
as the plaintiff maintains.” Thompson v. Ragland, 23 F.4th 1252, 1255 (10th Cir. 2022);
George v. Beaver County, 32 F.4th 1246, 1258 (10th Cir. 2022) (noting that the right must
be clearly established “in light of the specific context of the case, not as a broad general
proposition”) (internal quotation marks and citation omitted).
Defendants here argue that they have been unable to locate “any Supreme Court
or Tenth Circuit authority clearly establishing [Plaintiff’s] right to [an investigation by
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consulting an available computer database] prior to the use of OC spray.” Motion [#24] at
14. Plaintiff has not directed the Court’s attention to one, and the Court has independently
been unable to locate such a case clearly establishing this right, particularly with respect
to persons who did not actually use the spray or directly order the use of the spray.
Although it may not be used to demonstrate a clearly established right, given that
it is not Supreme Court, published Tenth Circuit, or other circuit court precedent, the Court
finds Ross v. Willis, No. 16 Civ. 6704 (PAE) (KNF), 2021 WL 3500163 (S.D.N.Y. Aug. 9,
2021), to be generally instructive given the largely analogous facts. In Ross, an inmate
with asthma refused to leave his cell for a court appearance, and a team of officers used
OC spray on him during the subsequent forced cell extraction. Ross, 2021 WL 3500163,
at *3-5. The plaintiff’s theory was that “‘a reasonable officer should have known about [the
plaintiff’s] medical condition before using [OC spray] on him” because “DOC policies . . .
required officers to check an inmate’s contraindications prior to deploying chemical agent
in non-emergency anticipated-use-of-force scenarios.’” Ross, 2021 WL 3500163, at *19
(citation omitted). The court states that the plaintiff’s “claim thus effectively treats the DOC
policies as coextensive with his § 1983 claim for deliberate indifference, such that failure
to comply with the policy establishes the requisite knowledge on [the defendant-officer’s]
part,” and because the officer “failed to comply with the policies and thereby was unaware
of [the plaintiff’s] particular medical vulnerabilities, . . . his decision to pepper spray [the
plaintiff] was objectively reckless and a violation of [the plaintiff’s] clearly established
statutory or constitutional rights.” Id. The court held that “[t]he DOC policies on which this
argument rests, however, do not provide [the plaintiff] with a clearly established statutory
or constitutional right.” Id. (citing Sandin v. Conner, 515 U.S. 472, 481-82 (1995) (“[A]
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prison regulation primarily designed to guide correctional officials in the administration of
a prison” is “not designed to confer rights on inmates.”)). The court noted that the plaintiff
had “not cited a clearly established constitutional or statutory right to have an officer in
the circumstances presented ascertain the inmate’s medical profile before commencing
pepper-spraying,” and therefore that the defendant-officer was entitled to qualified
immunity. Id.
The circumstances of Ross are slightly different than those here, as the plaintiff
there did not inform officers of his asthma prior to use of the OC spray on him, while
Plaintiff 	here 	states 	that 	he 	told 	them 	beforehand. 	Am. 	Compl. 	[#10] 	at 	9-12.
Nevertheless, here, as in Ross, Plaintiff has not cited a clearly established constitutional
or statutory right to have the officers in these circumstances ascertain Plaintiff’s medical
profile before commencing the use of OC spray. Thus, Defendants Pickett, Fontenot,
Plato, Cross, Miles, Gonzales, Whitfield, Heisman, Cordova, and Gomez are entitled to
qualified immunity.
Accordingly, the Motion [#24] is granted in part, and Plaintiff’s excessive force
claim against Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, Whitfield,
Heisman, Cordova, and Gomez in their individual capacities seeking monetary relief is
dismissed with prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state
a claim under Rule 12(b)(6) and granting leave to amend would be futile.”).
b. 	Failure to Intervene
Although not identified as such, Plaintiff appears to assert a separate claim that
Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, and Whitfield failed to
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intercede in the use of force by Defendant Molello. Am. Compl. [#10] at 12 (stating that
these Defendants, “instead of breaking the chain to go find out about my claim of asthma,
stood still & enable[d] Molello to assault me with OC. This makes them just as liable as if
they had spray[ed] me themselves.”).
“[A] prison official’s failure to protect an inmate from a known harm may constitute
a constitutional violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). Thus,
“even when a jail employee does not himself use excessive force, he may be liable for
failure to intervene when he is present at the scene and . . . fails to take reasonable steps
to protect the victim of another office’s use of excessive force.” Scriven v. Corby, No. CV-
03110-JAR-KKG, 2021 WL 2222682, at *10 (D. Kan. June 2, 2021) (internal quotation
marks omitted) (quoting Mascorro v. Billings, 656 F3d. 1198, 1204 n.5 (10th Cir. 2011)).
In order to state this type of claim, the plaintiff must adequately allege that the defendant-
officer “(1) observed a constitutional violation and (2) had a realistic opportunity to
intervene.” Mullins v. City of Colorado Springs, 575 F. Supp. 3d 1360, 1372 (D. Colo.
2021) (citing Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015); Mick v. Brewer, 76 F.3d
1127, 1136 (10th Cir. 1996)). Allegations of officers’ “mere presence at the scene and
their failure to stop any of the alleged constitutional violations committed by their fellow
officers” is insufficient to state a claim for failure to intervene. Bark v. Chacon, 504 F.
App’x 741, 746 (10th Cir. 2012)).
Here, Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, and Whitfield
argue that Plaintiff has not adequately alleged that they “had sufficient time or opportunity
to intercede in the alleged use of excessive force by [Defendant] Molello.” Motion [#24] at
10. Plaintiff does not allege that any of these Defendants actually knew that he had
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medically-diagnosed asthma or that there was a medical restriction in Plaintiff’s online
computer file restricting the use of OC spray on him; rather, he believes that they should
have taken his word for it when he told them after the team was assembled outside his
cell, made Defendants Molello and Roetker stop what they were doing, and gone to check
the computer file. Am. Compl. [#10] at 9-12. Indeed, taking Plaintiff’s statements at face
value, this may have been a prudent course of action; however, a lack of prudence does
not, by itself, support an Eighth Amendment violation. See, e.g., Mosay v. Wall, No. 13-
cv-841-wmc, 2015 WL 128076, at *7 (W.D. Wisc. Jan. 8, 2015) (noting that, “[w]hile it
may well have been more prudent for the correctional officers to have [taken a particular
course of action] . . . , ‘the Eighth Amendment does not apply to every deprivation, or
even every unnecessary deprivation, suffered by a prisoner, but only [to] that narrow class
of deprivations involving serious injury inflicted by prison officials acting with a culpable
state of mind.’” 	(citation 	omitted)). 	Nevertheless, as 	these Defendants 	state, 	“the
Amended Complaint is entirely silent as to the amount of time that passed from [Plaintiff]
announcing that he was an OC-restricted asthmatic, to Roetker ordering the use of OC
spray, to Molello administering the spray.” Motion [#24] at 11. “Likewise, the Amended
Complaint is silent as to the amount of time Molello actively dispensed OC spray into
[Plaintiff’s] cell.” Id. The Court agrees that there is simply not enough alleged here to
demonstrate that there was enough time for these Defendants to intervene to stop
Defendants Molello’s and Roetker’s alleged use of excessive force on Plaintiff. See, e.g.,
Sexton v. Faris, No. 22-cv-1927-WJM-MEH, 2023 WL 5671492, at *9 (D. Colo. Sept. 1,
2023) (noting absence of nonconclusory allegations regarding the defendant supervisors’
opportunity to intervene).
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However, even assuming that Plaintiff had alleged enough here for this claim to
survive against these Defendants, Plaintiff has not directed the Court’s attention to, and
the Court has independently been unable to locate, a case clearly establishing the right
to have these Defendants intervene to stop the use of force in this context, where the use
of OC spray can in certain cases form the basis of a constitutional violation, where the
inmate was non-compliant with officer directives, and where there was no clearly
established independent duty for officers not administering the force to check computer
files for inmate medical restrictions. Thus, the Court finds that Defendants Pickett,
Fontenot, Plato, Cross, Miles, Gonzales, and Whitfield are entitled to qualified immunity.
Accordingly, the Motion [#24] is granted in part, and Plaintiff’s failure-to-intervene
claim against Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, and Whitfield
in their individual capacities seeking monetary relief is dismissed with prejudice. See
Brereton, 434 F.3d at 1219.
IV. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Defendants’ Motion [#24] is GRANTED. Plaintiff’s
claims against Defendants Pickett, Fontenot, Plato, Cross, Miles, Gonzales, Whitfield,
Heisman, Cordova, and Gomez (as “Jane Doe, Nurse”) are DISMISSED with prejudice
in part and without prejudice in part, as outlined above. The Clerk of Court shall
remove these names from the electronic docket.
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IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff’s 	excessive 	force 	claim 	against
Defendants Molello and Roetker is DISMISSED without prejudice in part to the extent
Plaintiff seeks declaratory and injunctive relief.11
IT IS FURTHER ORDERED that the Clerk of Court shall correct the spelling of
Defendant “Roether, Capt.” on the electronic docket to Defendant “Roetker, Capt.”
Dated: March 22, 2024 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
11 Plaintiff’s Eighth Amendment excessive force claim against Defendants Roetker and Molello in
their individual capacities for monetary damages remains in this lawsuit.
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