Apodaca v. Giles

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 25-cv-00665-PAB-CYC
STEVEN ANGELO APODACA,
Plaintiff,
v.
FAGRELIUS CLARK,
STEPHEN GILES, and
ISOM,
Defendants.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 121]. The recommendation addresses the Motion to
Dismiss Second Amended Complaint (ECF No. 107) [Docket No. 113]. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
The facts are set forth in the magistrate judge’s recommendation, Docket No.
121 at 2-3, and the Court adopts them for purposes of ruling on the objection. To the
extent that defendants dispute how the magistrate judge construed certain facts, the
Court considers and resolves those arguments below.
On February 28, 2025, plaintiff filed this case. Docket No. 1. The second
amended complaint (the “complaint”) brings claims under 42 U.S.C. § 1983 for
excessive use of force, deliberate indifference, and failure-to-intervene. Docket No. 107
at 4-16. Plaintiff’s claims arise out of injuries plaintiff sustained while being restrained
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prior to a strip search. Id. On February 4, 2026, defendants filed a motion to dismiss.
Docket No. 113. On August 25, 2026, Magistrate Judge Cyrus Y. Chung issued a
recommendation to grant the motion to dismiss on all claims except the excessive force
claim against defendant Giles. Docket No. 121. On September 3, 2026, defendant
Giles filed a timely objection to the August 25, 2026 recommendation. Docket No. 122.
On September 16, 2026, plaintiff filed a response. Docket No. 123.
II. LEGAL STANDARD
A. Objections to the Magistrate Judge Recommendation
The 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). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).
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B. Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not
need to accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457,
1465 (10th Cir. 1994) (“[W]e are not bound by conclusory allegations, unwarranted
inferences, or legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
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must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
The magistrate judge recommends granting the motion to dismiss on all claims
except the excessive force claim against defendant Giles. Docket No. 121 at 12-13.
Defendant Giles objects on the basis that the complaint does not sufficiently allege the
subjective prong of the excessive force claim. Docket No. 122 at 3-8. Defendant Giles
does not object to the recommendation’s finding that the complaint plausibly alleges that
the objective prong of the excessive force claim is satisfied or the finding that defendant
Giles violated clearly established law. Plaintiff does not object to the recommendation.
The Eighth Amendment provides that “cruel and unusual punishments” shall not
be inflicted. U.S. Const. amend. VIII. “After incarceration, only the unnecessary and
wanton infliction of pain . . . constitutes cruel and unusual punishment.” Ingraham v.
Wright, 430 U.S. 651, 670 (1977) (internal quotations and citations omitted). “[A]n
excessive force claim involves two prongs: (1) an objective prong that asks if the
alleged wrongdoing was objectively harmful enough to establish a constitutional
violation, and (2) a subjective prong under which the plaintiff must show that the officials
acted with a sufficiently culpable state of mind.” Giron v. Corr. Corp. of Am., 191 F.3d
1281, 1289 (10th Cir. 1999) (internal quotations, alterations, and citation omitted).
“The subjective element of an excessive force claim ‘turns on whether force was applied
in a good faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.’” Id. (quoting Whitely v. Albers, 475 U.S. 312, 320-
21 (1986)).
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The recommendation finds that the complaint plausibly alleges an excessive
force claim stemming from defendant Giles slamming plaintiff’s face and head into a
concrete bunk after plaintiff involuntarily moved from pain caused by defendant Giles
putting a wrist restraint on plaintiff. Docket No. 121 at 6-7. In making this finding, the
recommendation notes that the complaint alleges that defendant Isom testified that
defendant Isom “knew that the overly-tight wrist restraint caused plaintiff’s involuntary
movement.” Id. at 7. Therefore, the recommendation finds that “it was objectively
knowable that the plaintiff was not resisting and instead moved his body involuntarily in
response to the restraints” and thus “Giles’s use of the moment to slam the plaintiff’s
head into concrete could plausibly have been for the purpose of harming the plaintiff,
rather than a legitimate response to aggression.” Id.
Defendant Giles objects to this finding, arguing that the allegation in the
complaint regarding defendant Isom’s testimony merely establishes that defendant Isom
retrospectively assumed that the wrist restraint was applied too tightly, not that
defendant Isom contemporaneously knew that plaintiff involuntarily moved as a result of
the wrist restraint being tightly applied. Docket No. 122 at 5-6. Moreover, defendant
Giles argues that allegations regarding what defendant Isom knew do not establish what
defendant Giles subjectively knew and therefore do not plausibly establish that
defendant Giles acted with a culpable state of mind. Id. at 6-7. While these objections
have merit, the issue for defendants is that several other allegations in the complaint,
independent of what defendant Isom knew, plausibly establish that defendant Giles
acted for the purpose of causing harm rather than for the purpose of officer safety.
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The complaint alleges that plaintiff is 63 years old. Docket No. 107 at 14. On
April 5, 2024, plaintiff requested to speak with a mental health clinician about a
grievance. Id. at 4. Plaintiff was escorted to a mental health holding cell to speak with a
mental health clinician. Id. Before being escorted, plaintiff’s feet were shackled and his
hands were cuffed behind his back. Id. at 4-5. Plaintiff remained shackled and
handcuffed throughout the incident. Id. at 14. While being escorted to the holding cell,
defendant Giles pushed plaintiff hard on plaintiff’s upper back and neck. Id. at 5.
Plaintiff repeatedly asked defendant Giles to stop, explaining that he had recent neck
surgery and medical issues. Id. In response, defendant Giles said “shut up I don’t
care.” Id. Plaintiff turned his head to look at defendant Giles’s name, presumably on
his uniform, and defendant Giles told plaintiff “don’t turn on staff.” Id. In response,
plaintiff informed defendant Giles of his intent to file a grievance against him. Id.
Plaintiff complied with defendant Giles’s directive to look ahead and continued to
obey all other directives. Id. at 6-7. Upon arriving at the holding cell, defendant Clark
asked plaintiff if he was going to comply with the strip search, to which plaintiff
responded that he would comply, but wanted mental health staff present due to his
belief that defendant Giles was trying to hurt him. Id. at 7. Defendant Clark stated that
if plaintiff did not strip, the corrections staff would cut his clothes off. Id. Corrections
staff proceeded to get “strip out restraints and a pair of scissors.” Id. While waiting for
the restraints, defendant Giles continued pushing hard on plaintiff’s upper back and
neck area. Id. Plaintiff again stated that defendant Giles was hurting him and that he
recently had neck surgery. Id. Defendant Giles responded by stating “I don’t care you
can have another one.” Id. Shortly thereafter, a staff member brought back the
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restraints. Id. Plaintiff, due to fear that defendants were going to hurt him, stated he
would comply with the strip search without the presence of mental health staff. Id. at 7-
8. Defendant Clark applied a belly chain to plaintiff and secured the paddle lock, during
which plaintiff was fully compliant. Id. at 8. Defendant Giles then “applied the left
universal wrist restraint so tight i[t] sent shockwaves through [plaintiff’s] whole body and
out of extreme pain [plaintiff] did involuntarily move.” Id. In response, defendant Giles
grabbed the back of plaintiff’s head and neck and slammed his head and face against
the concrete bunk with sufficient force to cause plaintiff to see a white flash and almost
lose consciousness. Id. As a result, plaintiff had an egg size knot on the left side of his
head and could not see well from his left eye. Id. at 8-9. Plaintiff’s wrist was swollen
from the wrist restraint. Id. at 9.
Viewing these allegations in the light most favorable to plaintiff, defendant Giles
repeatedly pushed hard on plaintiff’s upper back and neck. In response to plaintiff’s
statement that it hurt him and that he had recent neck surgery, defendant Giles told him
that he did not care. Then, shortly after telling plaintiff that he did not care that plaintiff
had a recent neck surgery, defendant Giles tightly applied a wrist restraint to plaintiff’s
left wrist. When plaintiff involuntarily moved due to the pain, defendant Giles grabbed
the back of plaintiff’s head and neck and slammed his head and face against the
concrete bunk with sufficient force to almost knock plaintiff unconscious. From this set
of facts, it is plausible that defendant Giles used this force with malicious intent to cause
plaintiff harm, rather than with an intent to maintain order and discipline. This inference
is plausibly supported by the fact that defendant Giles stated that he did not care if he
was hurting plaintiff shortly before slamming his face into the concrete bunk and by the
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degree of force defendant Giles used. In ruling on a motion to dismiss, the court “must
draw all reasonable inferences in favor of the nonmoving party.” George v. HEK Am.,
Inc., 157 F.R.D. 489, 492 (D. Colo. 1994) (citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). Therefore, the Court finds that the complaint sufficiently alleges the subjective
prong.
Defendant Giles maintains that the allegations in the complaint support a
contrary inference. Docket No. 122 at 4-5. Specifically, he states the complaint alleges
that plaintiff turned on defendant Giles while being escorted down the hallway, refused
to initially consent to a strip search, and made a sudden movement while his restraints
were being changed out. Id. However, when ruling on a Rule 12(b)(6) motion, “it is not
necessary that the inference of intent supported by the pleaded facts be the most
plausible explanation of the defendant’s conduct. It is sufficient if the inference of intent
is plausible.” Rupp v. Pearson, 658 F. App’x 446, 449 (10th Cir. 2016) (unpublished)
(internal quotations, citations, and alterations omitted); see also 80sTee.com, Inc. v.
Jersey Nation Pty., Ltd., No. 25-cv-01603-STV, 2026 WL 294930, at *9 (D. Colo. Feb. 4,
2026) (“If there are two alternative explanations, one advanced by defendant and the
other advanced by plaintiff, both of which are plausible, plaintiff’s complaint . . . survives
a motion to dismiss under Rule 12(b)(6).”) (quoting Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011)). Thus, it does not matter that there is a plausible explanation that
defendant Giles’s conduct was for a legitimate purpose so long as plaintiff provides a
plausible explanation why defendant Giles’s conduct was malicious. Plaintiff has done
so. Defendant Giles does not challenge the recommendation’s finding on the objective
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prong or the recommendation’s finding that defendant Giles violated clearly established
law. Therefore, the Court will overrule defendant Giles’s objection.
The magistrate judge recommends dismissing plaintiff’s other claims for relief
without prejudice, which include deliberate indifference claims against all defendants,
excessive force claims against defendants Isom and Clark, and failure-to-intervene
claims against defendants Clark and Isom.1 Docket No. 121 at 1, 12-13. Plaintiff did
not file an objection to the recommendation. The Court has reviewed the non-objected
to portions of the recommendation to satisfy itself that there is “no clear error on the
face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this
review, the Court has concluded that these portions of the recommendation are a
correct application of the facts and the law and will accept the magistrate judge’s
recommendation.
IV. CONCLUSION
Therefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 121] is ACCEPTED. It is further
ORDERED that Defendant Giles’s Objection to the Magistrate Judge’s
Recommendation on Motion to Dismiss (ECF No. 121) [Docket No. 122] is
OVERRULED. It is further
ORDERED that the Motion to Dismiss Second Amended Complaint (ECF No.
107) [Docket No. 113] is GRANTED in part and DENIED in part. It is further
1 Plaintiff does not independently number his claims, but rather puts all his claims
for relief under “Claim one.” Docket No. 107 at 4-16.
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ORDERED that plaintiff’s first claim for relief is DISMISSED without prejudice to
the extent it brings excessive force claims against defendants Clark and Isom,
deliberate indifference claims against defendants Clark, Isom, and Giles, and failure-to-
intervene claims against defendants Clark and Isom. It is further
ORDERED that defendants Clark and Isom are DISMISSED as parties to this
action.
DATED September 18, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
__________________________________
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