Opinion
CIVIL ACTION No. 00-3360-GTV
August 15, 2003
MEMORANDUM AND ORDER
Plaintiff, Lester D. Thomas, brings this action pursuant to 42 U.S.C. § 1983 against Defendant, Officer Stephani Travnicek, alleging that Defendant violated his Eighth and Fifth Amendment rights while he was incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas. The case is before the court on Defendant's motion to dismiss (Doc. 24). For the reasons set forth below, Defendant's motion is granted in part and denied in part. Plaintiff may proceed with his claim against Defendant in her individual capacity for violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff's claim for violation of his Fifth Amendment due process rights is dismissed.
I. RULE 12(c) STANDARD
Defendant moves to dismiss Plaintiffs complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The court begins by noting that Defendant filed her motion to dismiss after submitting her answer in this case. Technically, it is impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss. Fed.R.Civ.P. 12(b) (stating that a motion to dismiss under the rule "shall be made before pleading if further pleading is permitted"). "However, because Rule 12(h)(2) permits the court to consider `[a] defense of failure to state a claim upon which relief can be granted' within a Rule 12(c) motion for judgment on the pleadings, the court will treat defendant's motion as if it had been submitted under Rule 12(c)." Faulk v. Tiffany, No. 99-2354-GTV, 2000 WL 714336, at *1 (D. Kan. May 23, 2000) (citing Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 198O)). The distinction between the two rules is purely one of procedural formality, however. The court will employ the same standard that it uses to analyze a Rule 12(b)(6) motion to dismiss to evaluate a Rule 12(c) motion for judgment on the pleadings. Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2001) (citation omitted).
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery. Conley v. Gibsoa 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
II. FACTUALBACKGROUND
The following facts are taken from Plaintiffs complaint and are assumed to be true for purposes of this opinion. On March 17, 2000, Plaintiff was confined in the segregation unit at the El Dorado Correctional Facility in El Dorado, Kansas. At approximately 4:00 p.m. that day, he began complaining to Defendant about an unsanitary sack lunch he had been served. Plaintiff attempted to explain his problem with the sack lunch by holding the sack through the food-pass box of his cell. An argument between Plaintiff and Defendant ensued, and Defendant intentionally burned Plaintiff's hand while it was still inside the food-pass box by heating up the box with the flame from a cigarette lighter.III. DISCUSSION
Section 1983 permits an individual to pursue an action against any person who "under color of any statute, ordinance, regulation, custom, or usage," deprives the plaintiff of "any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. In this case, Plaintiff contends that Defendant violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fifth Amendment due process rights.
A. "Official Capacity" Claims
Defendant first argues that to the extent that Plaintiff is attempting to advance Eighth and Fifth Amendment claims against her in her "official capacity" (as opposed to "individual capacity"), such claims must be dismissed because: (1) she does not qualify as a "person" under § 1983; and (2) she is entitled to Eleventh Amendment immunity. Plaintiff does not contest Defendant's argument, and the court agrees that Plaintiff may not maintain such claims against Defendant in her "official capacity." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983.");Quern v. Jordaa 440 U.S. 332, 345 (1979) (holding that Congress did not abrogate states' Eleventh Amendment immunity when it enacted § 1983). Therefore, to the extent that Plaintiff ever advanced any "official capacity" claims against Defendant, the court grants Defendant's motion to dismiss those claims.
The court notes that despite Defendant's insistence that Plaintiffs complaint "clearly states that he is suing all Defendants [sic] in both their [sic] personal and official capacities," the court questions whether Plaintiff ever intended to advance an "official capacity" claim against Defendant at all.
B. Individual Capacity Claims
Defendant offers two arguments in support of her motion to dismiss Plaintiff's individual capacity claims. First, she contends that Plaintiff has failed to adequately allege a violation of his Eighth or Fifth Amendment rights. Second, Defendant contends that, in any event, she is entitled to qualified immunity.1. Violation of Eighth Amendment Rights
In Count I of his complaint, Plaintiff asserts a claim for violation of his Eighth Amendment right to be free from cruel and unusual punishment. His claim arises from Defendant's alleged use of excessive force in burning his hand through the food-pass box. To state a cognizable Eighth Amendment claim for use of excessive force, the plaintiff must allege facts indicating that the force was not applied "in a good-faith effort to maintain or restore discipline," and that the force was applied "maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). The plaintiff does not need to show that he suffered serious injury, but the extent of his injury is relevant in evaluating the necessity and wantonness of the force. Id. at 4, 7-9. Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. De minimus uses offeree are not prohibited by the constitution. Id. at 9-10.
Here, Plaintiff has alleged sufficient facts to state a cognizable Eighth Amendment claim for use of excessive force. He specifically alleges in his complaint that Defendant's actions were malicious, sadistic, and caused him "unnecessary and wanton pain and suffering and harm." Moreover, in the Martinez report filed in this case (which was specifically incorporated by reference to Defendant's answer), Defendant admits the following:
I took the lighter and placed [it] under the food pass box and lit it. When I lit the lighter I burnt [sic] my own finger. It was only lit may[be] 10-15 seconds — I then handed the lighter back to COII Searfoss. I realize what I did was not professional but after 30-45 minutes of being cussed out I just lost my cool. This is not a behavior I practice and it is not something I would ever do again."
Viewing all reasonable inferences in Plaintiff's favor, the court concludes that Defendant's motion to dismiss Plaintiff's Eighth Amendment claim for failure to adequately allege a constitutional violation must be denied. Plaintiff is entitled to offer evidence to support this claim.
The court notes that throughout her memorandum in support of her motion to dismiss, Defendant argues that Plaintiffs Eighth Amendment claim should be dismissed because Plaintiff "has failed to show," or "has failed to establish," or "the record does not support" the necessary facts to support his claim. Though perhaps an appropriate argument in support of a motion for summary judgment (where the plaintiff is required to show the existence of a genuine issue of material fact regarding the elements of his claim), Defendant's arguments are wholly inappropriate in support of a motion to dismiss or a motion for judgment on the pleadings (where the plaintiff need only allege, not show, the necessary elements of his claim).
2. Violation of Fifth Amendment Rights
In Count II of his complaint, Plaintiff asserts a claim for violation of his Fifth Amendment due process rights. It is not clear from either Plaintiff's complaint or his response to Defendant's motion to dismiss whether this claim is based upon the same incident as his Eighth Amendment claim. Regardless, due process claims under the Fifth Amendment may only be maintained against federal officials, United States v. Lanza, 260 U.S. 377, 382 (1922), and Defendant in this case is a state official. Therefore, the court grants Defendant's motion to dismiss Plaintiffs Fifth Amendment claim.3. Qualified Immunity
Defendant also argues that she is entitled to qualified immunity because her actions violated no clearly established right of Plaintiff Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818 (citations omitted). For purposes of a motion to dismiss, the court conducts a two-part inquiry to determine whether a defendant is entitled to qualified immunity. First, the court must determine whether the plaintiff has sufficiently alleged a violation of federal law. Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001) (citations omitted). If the plaintiffs complaint adequately alleges such a violation, the court then examines whether "the right was sufficiently clear that a reasonable official would have understood that his conduct violated the right." Id. at 923 (citing Anderson v. Creighton 483 U.S. 635, 640 (1987)). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (citation omitted). The court does not apply a heightened pleading standard in the context of a qualified immunity defense raised in a motion to dismiss. Currier, 242 F.3d at 916-17.
Here, the court has already determined that Plaintiffs complaint adequately alleges a violation of his Eighth Amendment right to be free from cruel and unusual punishment. The court, therefore, turns directly to the issue of whether that right was sufficiently clear that Defendant should have understood that her conduct in burning Plaintiff on March 17, 2000 violated the right. The court concludes that, especially in light of Defendant's admission that she knew her actions were unprofessional and out of line with her typical behavior, a reasonable official would have understood that Defendant's conduct violated Plaintiffs constitutional rights. Defendant is not entitled to qualified immunity, and the court therefore denies her motion to dismiss Plaintiffs Eighth Amendment claim on that ground.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion to dismiss (Doc. 24) is granted in part and denied in part. Plaintiff may proceed with his claim against Defendant in her individual capacity for violation of his Eighth Amendment right to be free from cruel and unusual punishment (Count I of Plaintiffs complaint). Plaintiffs claim for violation of his Fifth Amendment due process rights (Count n of Plaintiff s complaint) is dismissed.
Copies of this order shall be transmitted to counsel of record. IT IS SO ORDERED.