Escobar v. Reid (668 F. Supp. 2d 1260, 2009)

United States District Court for the District of Colorado 2009-09-17

Citations

Full opinion text

ORDER ADOPTING AND AFFIRMING FEBRUARY 9, 2009 RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on the February 9, 2009 Recommendation of United States Magistrate Judge (Doc. # 209). The Recommendation concerns three dispositive motions filed by Defendants in this case: (1) Defendants’ Motion for Summary Judgment (Docs. # 176 & 177); (2) Defendants’ Combined Motion for Summary Judgment and Brief (Doc. # 178); and (3) Defendants’ Motion for Judgment on the Pleadings Dismissal of the Supplemental Complaint (Doc. # 179).

INTRODUCTION

Defendants’ Motions are not the paradigm of thorough lawyering. For example, they violate the local rales of procedure in multiple aspects and attach no evidence to support Defendants’ arguments, not even an affidavit or declaration. Notwithstanding the Motions’ shortcomings, the Magistrate Judge decided against striking the Motions. Instead, she recommends that Defendants’ Motion for Summary Judgment be GRANTED IN PART AND DENIED IN PART; Defendants’ Combined Motion for Summary Judgment and Brief be DENIED; and Defendants’ Motion for Judgment on the Pleadings Dismissal of the Supplemental Complaint be GRANTED.

Plaintiff filed timely objections to the Magistrate Judge’s recommendations. (Doc. #215.) However, Plaintiffs objections, much like his three operative complaints in this matter, are rather prolix and sprawling in nature. Instead of identifying specific errors in the Magistrate Judge’s recommendations, Plaintiff largely reiterates his factual allegations or provides new, but unsubstantiated, factual allegations in support of his claims. Thus, the Court has had some difficulty discerning the issues in the Magistrate Judge’s recommendations to which Plaintiff objects.

Regardless, because Plaintiff is proceeding pro se, the Court has given Plaintiff the benefit of the doubt and, to the extent possible, conducted a de novo review of the issues, recommendations, and Plaintiffs objections. Based on this review, the Court concludes that the Magistrate Judge’s thorough and comprehensive analyses are correct. Accordingly, the Court will AFFIRM AND ADOPT the Magistrate Judge’s Recommendation.

DISCUSSION

In her 74-page Recommendation, the Magistrate Judge did an excellent job of recounting the factual allegations, claims for relief, and procedural history in this case. Therefore, the Court directs readers to the Magistrate Judge’s Recommendation for a discussion of those topics.

I. STATUTE OF LIMITATIONS

The Magistrate Judge recommends that the Court dismiss certain of Plaintiff’s claims, those claims that the Magistrate Judge could determine accrued before June 18, 2004, on statute of limitations grounds. Plaintiff objects, arguing that the Magistrate Judge erred by refusing to equitably toll the two-year statute of limitations. Plaintiff claims that Defendants impeded his ability to file a lawsuit by: restricting his ability to file administrative grievances, refusing to provide him with a sufficient prison law library, interfering with legal mail, and physically and mentally harassing him.

Equitable tolling may save a plaintiffs claims from a statute of limitations defense, but, under Colorado law, courts rarely apply the doctrine. See, e.g., Noel v. Hoover, 12 P.3d 328, 330 (Colo.Ct. App.2000) (noting that equitable tolling requires wrongful conduct by the defendant or “truly exceptional circumstances” that prevent a plaintiff from filing a timely claim) (citing Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo.1996)). The Court agrees with the Magistrate Judge and finds that this case does not present the rare or “exceptional circumstances” in which equitable tolling should be applied.

Plaintiff has not shown that all of Defendants’ actions were wrongful or inequitable. It is undisputed that Defendants restricted Plaintiff from filing more than one administrative grievance per month. Plaintiff claims this restriction prevented him from filing a timely complaint. However, in restricting Plaintiffs grievance activity, Defendants acted in compliance with prison regulations and were responding to well-founded concerns that Plaintiff had abused the grievance process. The Court cannot say that Defendants’ restriction amounts to wrongful conduct supporting the application of equitable tolling.

Plaintiffs other allegations fail to support equitable tolling because Plaintiff has not shown how Defendants’ actions, even if wrongful, prevented him from filing his complaint in a timely manner. For example, Plaintiff describes only one incident in which Defendants interfered with his legal mail, Plaintiffs altercation with Defendant DeSantos. However, Plaintiff admits that another prison official came by his cell ten minutes later and picked up the legal mail that Defendant DeSantos refused to send. A ten-minute delay, even if wrongful, will not support equitable tolling. Regarding Plaintiffs objection that a dearth of materials in the prison law library delayed his ability to file a lawsuit, Plaintiff does not identify any materials withheld by Defendants from the library that would have expedited his complaint in this lawsuit. Even if Plaintiff could show that a deficiency in the prison law library prevented him from filing a timely complaint, Plaintiff has not shown that Defendants caused the deficiency or had the ability to cure the deficiency.

Accordingly, the Court agrees with the Magistrate Judge that certain claims accruing prior to June 18, 2004, should be dismissed as untimely.

II. DEFENDANTS REID, LUNA, MARTIN, CRANEY, AND RITA

Plaintiff next objects to the Magistrate Judge’s recommendation that the Court dismiss Plaintiffs claims against Defendants Reid, Luna, Martin, Craney, and Nurse Rita on the basis that these Defendants did not personally participate in any of the alleged constitutional deprivations.

A. Defendant Reid

Plaintiff contends that Defendant Reid wrote letters to Plaintiff and imposed restrictions on Plaintiffs ability to file administrative grievances, and that these actions reflect Defendant Reid’s personal involvement in the alleged violations of Plaintiffs constitutional rights. Plaintiff also argues that Defendant Reid knew or should have known about the alleged assaults by prison officials and unconstitutional conditions of confinement.

However, the Court disagrees with Plaintiff that Defendant Reid can be held liable in this case. As the Magistrate Judge notes, claims under 42 U.S.C. § 1983, like those Plaintiff alleges in this case, do not allow a plaintiff to hold a defendant liable under a respondeat superior theory. McKee v. Heggy, 703 F.2d 479, 483 (10th Cir.1983) (supervisor cannot be held liability solely by virtue of supervisory position). In his objection, Plaintiff has done little more than reiterate his allegations that Defendant Reid supervised or managed the wrongful actions of subordinate prison officials. However, simply because Defendant Reid’s name was on certain documents does not mean that Defendant Reid personally participated in the actions about which Plaintiff complains. And, in a similar manner to deficient allegations in his complaints, Plaintiffs objection fails to provide evidence of an affirmative link between Defendant Reid and those subordinate officials’ actions aside from Defendant’s Reid’s tangential supervisory role. See Serna v. Colorado Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir.2006) (holding that “it is not enough for a plaintiff to merely show a defendant was in charge of other state actors who actually committed the violation”).

Thus, the Court agrees that Plaintiffs claims against Defendant Reid should be dismissed per the Magistrate Judge’s recommendation.

B. Defendants Luna, Martin, Craney, and Nurse Rita

The Court also agrees with the Magistrate Judge that Plaintiffs complaints fail to state claims against Defendants Luna, Martin, Craney, and Nurse Rita because Plaintiff has not shown that these Defendants personally participated in any constitutional violation.

Regarding Defendant Luna, Plaintiff has simply alleged that Defendant Luna destroyed and continues to destroy Plaintiffs legal mail. These allegations are vague and unsupported, and Plaintiff has not linked them to any constitutional injury.

Regarding Defendants Martin, Craney, and Nurse Rita, Plaintiff objects to the Magistrate Judge’s recommendation by moving to amend his complaints to add new allegations against these Defendants. However, Plaintiffs after-the-fact motion to amend is improper under the local rules of procedure, and the Court need not consider it as a basis to overrule the Magistrate Judge’s recommendation. See D.C.COLO.LCivR 7.1C (“A motion shall be made in a separate paper.”).

Accordingly, the Court agrees with the Magistrate Judge that the claims against Defendants Luna, Martin, Craney, and Nurse Rita should be dismissed.

III. QUALIFIED IMMUNITY

The Magistrate Judge recommends that the Court dismiss certain claims on the basis of qualified immunity. Plaintiff objects to these recommendations, but the Court agrees with the Magistrate Judge.

A. Sexual Harassment!Abuse Against Defendant Mora

The Magistrate Judge recommends that the Court dismiss Plaintiffs Eighth Amendment claim against Defendant Mora to the extent the claim is founded on Defendant Mora’s unwelcome sexual advances because, even if true, the harassment does not reach federal constitutional proportions. Thus, the Magistrate Judge concluded that Plaintiff could not meet the first prong of the qualified immunity test, violation of a constitutional or statutory right. See Nelson v. McMullen, 207 F.3d 1202 (10th Cir.2000) (describing plaintiffs two-part burden under qualified immunity). After reviewing Plaintiffs complaint and objection, the Court agrees with the Magistrate Judge that Defendant’ Mora’s conduct, although uncouth, unprofessional, and derogatory, is not sufficient to state a constitutional claim. See Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (episodes of harassment although “despicable,” do not rise to level of Eighth Amendment violation).

Plaintiff contends that he has provided enough factual material to state an Eighth Amendment violation. Plaintiff alleges that Defendant Mora grabbed Plaintiffs buttocks and made tasteless jokes about having sex with Plaintiff. Plaintiff also alleges that Defendant Mora belittled Plaintiffs faith. Assuming for purposes of this motion for summary judgment that these allegations are true, they reflect poorly on Defendant Mora. However, the Court agrees with the Magistrate Judge that they do not describe treatment severe or depraved enough to state a constitutional violation. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (noting that “not every malevolent touch by a prison guard gives rise to federal cause of action”).

Accordingly, the Court agrees with the Magistrate Judge that, to the extent it is based on allegations of sexual harassment, Plaintiffs Eighth Amendment claim against Defendant Mora should be dismissed.

B. Deliberate Indifference Against Defendants Wencl and Wermers

Plaintiff alleges that Defendant Wencl violated Plaintiffs Eighth Amendment rights by refusing to provide Plaintiff with medical attention and confiscating Plaintiffs medical pillow. Plaintiff alleges that Defendant Wermers committed a similar violation by failing to provide Plaintiff with treatment for Plaintiffs thyroid condition on October 19, 2004. The Magistrate Judge recommended that these claims should be dismissed because Plaintiff could not meet the first prong of the qualified immunity test, i.e., he could not state a violation of the Eighth Amendment.

The Court agrees with the Magistrate Judge that Plaintiffs generic allegations against Defendant Wencl do not describe a violation of the Eighth Amendment. In fact, Plaintiffs allegations against Defendant Wencl do not satisfy either element of a deliberate indifference claim. First, Plaintiff has not shown that Defendant Wencl ignored a sufficiently serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Second, Plaintiff has not shown that Defendant Wencl knew of and disregarded an excessive risk to Plaintiffs health and safety. Id. at 837, 114 S.Ct. 1970. Plaintiff alleges only vague, unspecified maladies that Defendant Wencl allegedly ignored, and Plaintiff does not elaborate on his purported medical ailments in his objection. Nor does Plaintiff describe any injuries that he suffered as a result of Defendant Wencl’s alleged deliberate indifference. Thus, Plaintiff has not stated an Eighth Amendment claim against Defendant Wencl.

Regarding Defendant Wermers, Plaintiff provides more specific facts regarding the incident underlying his claim, and Plaintiff correctly notes that his medical condition need not be life threatening to trigger liability. However, Plaintiff still fails to allege any facts from which the Court or a jury might be able to infer that Defendant Wermers knew of and disregarded an “excessive risk” to Plaintiffs health. See id. at 837, 114 S.Ct. 1970. Neither Plaintiffs complaints nor his objection explain what facts, e.g., statements by Defendant Wermers or subsequent medical treatment, would imply that Defendant Wermers, by refusing to treat Plaintiff for his thyroid condition, knowingly disregarded an excessive risk Plaintiffs health or safety.

Accordingly, the Court agrees with the Magistrate Judge that the claims against Defendants Wencl and Wermers should be dismissed.

C. Defendants Cooper, Haucks, and Perry

The Magistrate Judge found that Plaintiffs fourth claim actually contained two distinct claims for relief: one claim for violation of procedural due process based on the allegations that Defendants Cooper, Haucks, and Perry had disciplined Plaintiff without given him due process, and a second claim for First Amendment retaliation based on the allegations that Defendants Cooper, Haucks, and Perry disciplined Plaintiff in retaliation for Plaintiffs participation in protected activities. The Magistrate Judge recommends that the Court dismiss both claims on the basis of qualified immunity.

Regarding procedural due process, the Magistrate Judge found that Plaintiff did not establish a violation of due process because he could not show that his disciplinary conviction and resulting segregation imposed an “atypical and significant hardship on [Plaintiff] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Plaintiff objects, contending that he has shown that Defendants Cooper, Haucks, and Perry imposed disciplinary measures on him by using prison procedures that allowed for too much “play” in the process.

Plaintiffs objection fails for a number of reasons. First, Plaintiff cites no authority for his proposed constitutional standard — “play” or discretion in the disciplinary process does not mean that the process is constitutionally inadequate. Indeed, prison officials need a certain amount of discretion to deal with the multitudinous issues that arise in a prison disciplinary context and this Court is ill-equipped to second guess those procedures on the basis of Plaintiffs vague allegations. See, e.g., Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Second, even if the disciplinary procedures followed by Defendants were constitutionally inadequate under the circumstances, Plaintiff has not shown that Defendants Cooper, Haucks, and Perry imposed any punishment on him that was atypical or unusual in relation to the normal prison disciplinary process. See Sandin, 515 U.S. at 485, 115 S.Ct. 2293. In other words, Plaintiff cannot show that the purported denial of procedural due process caused him a cognizable injury. Thus, the Court agrees with the Magistrate Judge that Plaintiffs fourth claim does not state a procedural due process claim against Defendants Cooper, Haucks, and Perry.

Regarding First Amendment retaliation, Plaintiff must show that (1) he engaged in protected activity; (2) he suffered an adverse action; and (3) that a causal connection exists between the protected activity and the adverse action. See Scott v. Churchill, 377 F.3d 565, 569 (6th Cir.2004). In her recommendation, the Magistrate Judge acknowledges that Plaintiff had engaged in protected activity by filing administrative grievances and lawsuits, and suffered an adverse action in the form of disciplinary charges against him. However, the Magistrate Judge recommends that the Court dismiss Plaintiffs retaliation claim against Defendants Cooper, Haucks, and Perry because Plaintiff failed to establish specific facts that would permit a reasonable finder of fact to infer that Defendants Cooper, Haucks, and Perry intended to impose the disciplinary charges in retaliation against Plaintiff. In other words, the Magistrate Judge found that Plaintiff could not show causation.

The Court agrees with the Magistrate Judge. In his objection, Plaintiff contends that he has presented circumstantial evidence that permit an inference of a retaliatory motive by Defendants Cooper, Haucks, and Perry. However, Plaintiff has not alleged specific facts, such as statements by Defendants or conspicuous timing, to permit such an inference. Rather, he has alleged a diaphanous conspiracy among dozens of prison officials to retaliate against him. He also claims that there is suspicious timing between an un-described disciplinary action and an un-described assault. Yet, Plaintiff gives no dates or details concerning the conspiracy, disciplinary action, or assault. As such, the vague allegations are insufficient to link his disciplinary charges to his protected activity. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998) (noting that a prisoner must identify “specific facts” to establish retaliation).

Accordingly, the Court agrees with the Magistrate Judge that, to the extent it sounds under the First Amendment, Plaintiffs claim four against Defendants Cooper, Haucks, and Perry should be dismissed.

IV. FIRST AMENDMENT CLAIM AGAINST DEFENDANT DeSAN-TOS

The Magistrate Judge recommends that the Court dismiss Plaintiffs First Amendment claim against Defendant DeSantos because Plaintiff failed to establish that Defendant DeSantos caused Plaintiff a cognizable injury. Plaintiff objects claiming that Defendant DeSantos filed disciplinary charges against Plaintiff that caused him to suffer injury in the form of discipline by other prison officials.

Plaintiff does not dispute that ten minutes after Defendant DeSantos allegedly refused to accept Plaintiffs outgoing legal mail, another prison official, Lt. Pryor, came to Plaintiffs cell and took Plaintiffs mail to the mail room. Thus, Plaintiffs legal mail presumably reached its destination notwithstanding Defendant DeSantos’ actions. In other words, Defendant DeSantos’ refusal to “log in” Plaintiffs legal mail did not affect Plaintiffs legal proceedings. See Lewis v. Casey, 518 U.S. 343, 351 [116 S.Ct. 2174, 135 L.Ed.2d 606] (1996) (noting that a plaintiff must prove that a defendant’s conduct actually impeded the plaintiffs ability to conduct a case). Thus, because Plaintiffs legal mail was delayed by only ten minutes, the Magistrate Judge correctly concludes that Plaintiff did not suffer an actual, cognizable injury.

Accordingly, the Court agrees with the Magistrate Judge that Plaintiffs First Amendment claim against Defendant DeSantos should be dismissed.

V. EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS PAULI-NO, CONWAY, DeSANTOS, RAYMOND, SMITH, WILLIAMS, AND BALL

Plaintiff alleges that Defendants Paulino, Conway, DeSantos, Raymond, Smith, Williams, and Ball violated his Eighth Amendment rights by showing deliberate indifference to Plaintiffs serious medical needs when Plaintiff suffered chest pains on June 16, 2006. The Magistrate Judge recommended that this claim be dismissed because Plaintiff could not show that these Defendants intentionally delayed Plaintiff in obtaining medical care. The key component of the Magistrate Judge’s recommendation was the fact that Defendants did everything within their power to provide Plaintiff with immediate medical attention. The Magistrate Judge found that any delay in treatment resulted from causes outside of Defendants’ domain, ie., a delay in getting a van to the prison to transport Plaintiff to the hospital. Thus, the Magistrate Judge concluded that Defendants Paulino, Conway, DeSantos, Raymond, Smith, Williams, and Ball lacked the requisite, culpable state of mind necessary to state an Eighth Amendment claim.

In apparent acknowledgment of the deficiency with this claim, Plaintiff adds considerable factual allegations in his objection. For the first time, Plaintiff alleges that Defendants lied about the lack of available transportation and that Defendants could have called an ambulance to avoid the four hour delay in transporting Plaintiff to the hospital. However, these unsubstantiated and self-serving allegations of fact cannot save this claim from dismissal. First, these allegations were not before the Magistrate Judge in a timely fashion. Second, the allegations are unsupported by the factual record and, even if Plaintiff presented affidavits or other factual support for his allegations, the admissibility of such evidence would be dubious at best since it relies so heavily on hearsay testimony.

Accordingly, the Court agrees with the Magistrate Judge that Plaintiffs Eighth Amendment claim against Defendants Paulino, Conway, DeSantos, Raymond, Smith, Williams, and Ball should be dismissed.

CONCLUSION

Plaintiffs lawsuit consists of three separate complaints with a sprawling series of unsupported, repetitive, and prolix allegations against no less than thirty-one prison officials. Against this broad backdrop, Defendants filed three dispositive motions that do not comply with the local rules of procedure, contain no evidence to contradict Plaintiffs factual allegations, and provide mere crumbs of legal argument to support dismissal of Plaintiffs claims. The Court commends the Magistrate Judge for wading through this thicket of questionable factual allegations and inattentive defense lawyering to arrive at a thorough and comprehensive Recommendation.

Accordingly,

IT IS ORDERED that the February 9, 2009 Recommendation of United States Magistrate Judge (Doc. # 209) is AFFIRMED and ADOPTED, and that Defendants’ Motion for Summary Judgment (Doc. #176) is GRANTED IN PART AND DENIED IN PART; Defendants’ Combined Motion for Summary Judgment and Brief (Doc. # 178) is DENIED; and Defendants’ Motion for Judgment on the Pleadings (Doc. # 179) is GRANTED.

IT IS FURTHER ORDERED that the following claims are dismissed:

(1) Plaintiffs First Claim for Relief against Defendants Haucks, Perry, Celia, Cooper, Gallagher, Montoya, Jackson, Binder, and Valdez for failure to file within the statute of limitations period;

(2) Plaintiffs Third Claim for Relief against Defendants Haucks, Perry, Cooper, Celia, and Reid for failure to file within the statute of limitations period;

(3) Plaintiffs First and Seventh Claims for Relief against Defendant Reid for failure to establish personal participation or supervisory liability;

(4) Plaintiffs First Claim for Relief against Defendant Luna and Seventh Claim for Relief against Defendants Martin, Craney, and Nurse Rita for failure to establish their personal participation;

(5) The portion of Plaintiffs First Claim for Relief that alleges Defendant Mora sexually molested him, on the grounds of qualified immunity;

(6) Plaintiffs Second Claim for Relief against Defendants Wencl and Wermers on the grounds of qualified immunity;

(7) Plaintiffs Fourth Claim for Relief against Defendants Haucks, Perry and Cooper on the grounds of qualified immunity;

(8) Plaintiffs Seventh Claim for Relief against Defendant Miklich on the grounds of qualified immunity; and

(9) Plaintiffs Fifth Claim for Relief against Defendants DeSantos, Paulino, Conway, Raymond, Smith, Williams, and Ball pursuant to Fed.R.Civ.P. 12(c).

IT IS FURTHER ORDERED that the following claims will remain:

(1) The portion of Plaintiffs First Claim for Relief that alleges Defendants Brown, Sims, and Diclusion used excessive force against him in violation of the Eighth Amendment;

(2) The portion of Plaintiffs First Claim for Relief that alleges Defendants Mora and Olivett denied him a nutritionally adequate diet in violation of the Eighth Amendment;

(3) The portion of Plaintiffs Sixth Claim for Relief that alleges Defendants Raymond and Gonzales used excessive force against him in violation of the Eighth Amendment;

(4) The portion of Plaintiffs Seventh Claim for Relief that alleges Defendants Colton, Hamula, and Mathews used excessive force against him in violation of the Eighth Amendment;

(5) The portion of Plaintiffs Seventh Claim for Relief that alleges Defendant Woolfolk failed to intervene and protect Plaintiff from Defendants’ Colton, Hamula, and Mathews’ application of excessive force in violation of the Eighth Amendment.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, United States Magistrate Judge.

This matter is before the Court on Defendants’ Motion for Summary Judgment [Docket No. 176; Filed October 2, 2008 and Docket No. 177; Filed October 2, 2008] (collectively, the “First Motion for Summary Judgment”), Defendants’ Combined Motion for Summary Judgment and Brief [Docket No. 178; Filed October 2, 2008] (the “Second Motion for Summary Judgment”) and Defendant’s Motion for Judgment on the Pleadings [sic] Dismissal of the Supplemental Complaint [Docket No. 179; Filed October 2, 2008] (the “Motion for Judgment on the Pleadings”). Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. COLO.L.Civ.R. 72.1.C., the matters have been referred to this Court for recommendation. The Court has reviewed the Motions, Plaintiffs Response [Docket No. 185; Filed October 20, 2008], the entire case file, and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that:

(1) Defendants’ Motion for Summary Judgment [Docket No. 176; Filed October 2, 2008] be GRANTED IN PART AND DENIED IN PART.

(2) Defendants’ Combined Motion for Summary Judgment and Brief [Docket No. 178; Filed October 2, 2008] be DENIED.

(3) Defendant’s Motion for Judgment on the Pleadings [sic] Dismissal of the Supplemental Complaint [Docket No. 179; Filed October 2, 2008] be GRANTED.

TABLE OF CONTENTS

I. Statement of the Case .....................................................1280

II. Standard of Review........................................................1284

A. Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56................1284

B. Motion for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c)........1284

III. Analysis .................................................................1285

A. First Motion for Summary Judgment....................................1285

1. Failure to Exhaust Administrative Remedies..........................1285

2. Statute of Limitations..............................................1286

a. First Claim for Relief..........................................1287

b. Second Claim for Relief.........................................1289

e. Third Claim for Relief..........................................1289

d. Fourth Claim for Relief.........................................1290

3. Personal Participation..............................................1290

a. Defendant Reid................................................1291

b. Defendants Luna, Martin, Craney and Nurse Rita..................1292

4. Qualified Immunity................................................1293

a. First Claim for Relief — Excessive Force..........................1293

i. Defendants Brown, Sims and Diclusion........................1294

ii. Defendants Mora and Olivett................................1295

b. Second Claim for Relief — Deliberate Indifference..................1297

i. Defendant Wencl...........................................1298

ii. Defendant Wermers........................................1299

c. Fourth Claim for Relief — Due Process Violations...................1299

i. Procedural Due Process.....................................1300

ii. First Amendment — Retaliation ..............................1302

d. Seventh Claim for Relief — Excessive Force Claims.................1304

i. Defendants Mathews, Hamula and Colton.....................1305

ii. Defendants Miklich and Woolfolk.............................1305

B. Second Motion for Sümmary Judgment..................................1306

1. Failure to Exhaust Administrative Remedies..........................1307

2. Qualified Immunity................................................1307

a. Defendant Raymond ...........................................1307

b. Defendant Gonzales............................................1308

C. Motion for Judgment on the Pleadings...................................1308

1. First Amendment Claim............................................1308

2. Eighth Amendment Claim..........................................1309

TV. Conclusion...............................................................1312

I. Statement of the Case

As a preliminary matter, the Court notes that Defendants have failed to abide by Local Rule of Practice D.C.COLO.LCivR. 56.1(A), which requires that “[a] motion under Fed.R.Civ.P. 56 shall include a statement of undisputed facts and be supported by argument and a recitation of legal authority incorporated into the motion in lieu of a separate opening brief.” In complete disregard of this rule, Defendants’ Motions for Summary Judgment do not contain statements of undisputed facts. Therefore, as a result of this omission, the Court will accept the facts as set forth in Plaintiffs Complaint as undisputed, except to the extent that it can determine the existence of a genuine dispute.

At the time of filing, Plaintiff was incarcerated at the Colorado State Penitentiary (“CSP”) by the Colorado Department of Corrections (“CDOC”). On June 27, 2006, Plaintiff filed his pro se Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 [Docket No. 3; Filed June 27, 2006]. Plaintiff filed Supplements to his Complaint on July 10, 2006 and July 11, 2006 [Docket No. 8 and No. 9], On September 22, 2006, Senior District Judge Weinshienk dismissed Plaintiffs Complaint on the grounds that Plaintiff had failed to demonstrate that he had exhausted his administrative remedies [Docket No. 16].

Plaintiff appealed this dismissal to the Tenth Circuit Court of Appeals, and on July 11, 2007, the Tenth Circuit reversed the decision and remanded Plaintiffs case to this Court. The Tenth Circuit noted that, at the time of its decision, the district court “properly relied on Steele and Ross to dismiss [Plaintiffs] complaint for failure to plead and demonstrate administrative remedies.” Mandate [# 28] at 7. However, the Tenth Circuit found that the recent Supreme Court case, Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), rejected Steele and Ross “by holding that failure to exhaust is an affirmative defense relieving prisoners from pleading and demonstrating exhaustion and eliminating the total exhaustion rule.” Id. The Tenth Circuit concluded that it was unclear from the record whether the alleged defects in Plaintiffs exhaustion efforts had been “produced from the action or inaction of prison officials,” and therefore, that the district court had been incorrect to dismiss Plaintiffs Complaint for failure to exhaust without first examining these circumstances. Id. at 8. Accordingly, by Order dated July 19, 2007, 240 Fed.Appx. 782 (10th Cir.2007), Plaintiffs case was reinstated in this Court [Docket No. 30]. Subsequently, on July 26, 2007, Plaintiff filed a third supplement to his Complaint [Docket No. 33], which was accepted for filing by the Court on October 29, 2007 [Docket No. 78],

Plaintiffs original Complaint asserts four claims for relief. In Plaintiffs First Claim for Relief, he alleges that on October 16, 2003, Defendants Haucks and Perry escorted him to the shower. Complaint [#3] at 8. While in the shower, Plaintiff alleges that Defendant Haucks punched Plaintiff in the left eye, shoved Plaintiff into the shower wall, and then put Plaintiff into a “reverse head lock,” smashing Plaintiff’s head into the shower floor, which “open[ed] a large gash along [Plaintiffs] left eye brow, knocking him unconscious .... ” Id. at 9. Plaintiff alleges that when he regained consciousness, he was lying in a large pool of blood and that Defendant Haucks “was jumping up and down on the Plaintiffs back rendering him unconscious again.” Id. Plaintiff contends that Defendants Perry, Celia and Cooper were aware that the assault was going to take place, but took no action to protect Plaintiff from the assault. Id. at 19. Plaintiff also contends that on October 16, 2003, while receiving medical treatment after the assault, Defendant Gallagher “got on top of Plaintiff and began punching him in the mouth while [Defendant] Nurse Montoya ... kept watch.” Id. at 9. Plaintiff further alleges that Defendants Celia, Haucks and Jackson contaminated his meals by spitting in them such that Plaintiff was unable to eat them. Id. at 20. Next, Plaintiff alleges that on November 21, 2003, Defendants Binder and Valdez punched Plaintiff in his left eye and left rib. Id. Plaintiff also alleges that on January 27, 2004, Plaintiff was transferred to “E-Unit” where Defendants Brown, Sims and Diclusion threatened Plaintiff with death, punched, kicked and spit on Plaintiff, tainted his meals, and generally engaged in severe physical and mental harassment of Plaintiff. Id. at 21.

Next, Plaintiff alleges that on July 20, 2004, he was transferred to “C-Unit” where Defendants Mora and Olivett verbally harassed Plaintiff, contaminated his meals, and sexually molested him. Id. at 22. Plaintiff alleges that during this time he lost approximately thirty pounds due to Defendants’ refusal to feed him uncontaminated food. Id. Finally, Plaintiff alleges that Defendant Reid, Warden of CSP, had an obligation to protect Plaintiff from harm and failed to fulfill this obligation. Id. at 22-23. Plaintiff alleges that these actions by Defendants in either subjecting him to harm or failing to protect him from harm violated his Eighth Amendment right to be free from cruel and unusual punishment.

In Plaintiffs Second Claim for Relief, he generally alleges that he requested, and was not provided, medical attention for injuries from the October 16, 2003 assault. Id. at 24. Plaintiff alleges that Defendant Wencl refused to provide any pain medication or treatment for Plaintiffs injuries and also confiscated Plaintiffs “medical pillow.” Id. Finally, Plaintiff alleges that on October 19, 2004, Defendant Wermers “came to Plaintiffs cell in regards to his thyroid and Plaintiff was unable to get up from bed, his legs and feet were severely swollen and neck and back pain was severe.” Id. at 25. Plaintiff alleges that Defendant Wermers left Plaintiffs cell without providing him medical care, and then charged him five dollars. Id. Plaintiff contends that the actions taken by Defendants Wencl and Wermers violated his Eighth Amendment right to be free from cruel and unusual punishment via deliberate indifference to his serious medical needs. Id.

In Plaintiffs Third Claim for Relief, he alleges that Defendants Cooper, Celia, Haucks and Perry were aware of previous lawsuits and/or prison grievances that Plaintiff had filed against them and engaged in retaliation against Plaintiff for his legal activities. Id. at 26. Plaintiff contends that the October 16, 2003 assault was carried out by Defendant Haucks and Perry in retaliation for Plaintiffs legal activities, and that Defendant Cooper and Celia were aware of the likelihood of an assault on Plaintiff, but facilitated the assault in order to retaliate against Plaintiff. Id. Finally, Plaintiff contends that Defendant Reid was aware that prison staff were intending to retaliate against Plaintiff, or had retaliated against Plaintiff, but Defendant Reid also retaliated against Plaintiff for his grievances and/or legal activities by failing to protect Plaintiff from the October 16, 2003 assault. Id. at 26-27.

In his Fourth Claim for Relief, Plaintiff alleges that as a result of and in connection with the October 16, 2003 assault, Defendants Haucks and Perry filed false disciplinary charges against him. Id. at 28. Second, Plaintiff contends that Defendant Cooper served as the hearing officer on the allegedly false disciplinary charges, and Defendant Cooper refused to step down as hearing officer even though she was biased against Plaintiff and had allowed or encouraged the October 16, 2003 assault in retaliation against Plaintiff for his legal activities. Id. Plaintiff alleges that these actions by Defendants violated his Fourteenth Amendment rights to receive procedural and substantive due process during his prison hearing. Id.

Plaintiff filed a First Supplemental Complaint on July 11, 2006 [Docket No. 8]. The Court will refer to the allegations contained in Plaintiffs First Supplemental Complaint as his Fifth Claim for Relief. In Plaintiffs Fifth Claim for Relief, he alleges that on June 18, 2006, Defendant DeSantos came to Plaintiffs cell to collect his legal mail. Fifth Claim for Relief [# 8] at 1. Plaintiff contends that Defendant DeSantos would not “log-in” Plaintiffs legal mail, and instead, “threw both envelopes down on the tier, close[d] Plaintiffs door tray slot and walked away.” Id. Next, Plaintiff alleges that Defendant Raymond yelled racial slurs at Plaintiff, informed him that he had lost his legal mail, and denied Plaintiffs request to see a supervisor. Id. at 1-2. Plaintiff states that approximately ten minutes later, nonparty Lt. Pryor came to Plaintiffs cell and properly received Plaintiffs legal mail so that it could be taken to the mail room. Id. at 2. However, Plaintiff alleges that later on June 16, 2006, he was charged with “assault charges” by Defendant DeSantos for the incident that occurred involving Plaintiffs legal mail. Id. Due to these charges, Plaintiff contends that on the night of June 16, 2006, he was transferred from CSP to the Centennial Correctional Facility (“CCF”) for code of penal discipline (“COPD”) violations, stripped naked, placed in restraints and then confined in a cell with no running water other than a toilet. Id.

Next, Plaintiff alleges that at 1:30 a.m. on the morning of June 17, 2006, he began having “severe chest pains, hot sweats, cold chills, numbness of his left shoulder, neck and left side of his face.” Id. Plaintiff alleges that he informed the prison officials, at which time they told him medical staff would be notified, and refused him water. Id. Plaintiff alleges that he experienced another chest pain at 3:00 a.m. and that he informed staff he believed he was having a heart attack and was again refused water. Id. at 2-3. At that time, he also alleges that Defendant Paulino informed him that there were no vehicles available to transfer Plaintiff to a medical facility and so Plaintiff was “shit out of luck,” and would have to wait for medical staff to come to CCF. Id. at 3. Plaintiff alleges that his restraints were removed at 6:00 a.m. on the morning of June 17, 2006, and that he was taken to see a nurse practitioner who immediately transferred him to a hospital by ambulance where several tests were administered to Plaintiff. Id.

Plaintiff alleges that Defendants DeSantos and Raymond denied him legal access to the Court and also retaliated against him for prior legal activity in apparent violation of his First Amendment rights. Id. Plaintiff further alleges that Defendants Paulino, Conway, DeSantos, Raymond, D. Smith, Williams and Ball were responsible for transferring Plaintiff to a medical facility, but failed to do so even once they were aware of his serious medical needs, in violation of his Eighth Amendment rights. Id. at 3-4.

Plaintiff filed a Second Supplemental Complaint on July 11, 2006 [Docket No. 9]. The Court will refer to the allegations contained in Plaintiffs Second Supplemental Complaint as his Sixth Claim for Relief. In Plaintiffs Sixth Claim for Relief, he alleges that on July 2, 2006, while Defendant Raymond escorted Plaintiff to the shower, Defendant Raymond “with a closed fist battered Plaintiffs right side with excessive force.” Sixth Claim for Relief [# 9] at 2. Plaintiff further alleges that from November 13, 2005 to January 18, 2006, Plaintiff was assaulted on a daily basis by Defendant Gonzales. Id. at 2-3. Plaintiff alleges that these actions were taken by Defendants in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Id.

Plaintiff filed a Third Supplemental Complaint on July 26, 2007 [Docket No. 33]. The Court will refer to the allegations contained in Plaintiffs Second Supplemental Complaint as his Seventh Claim for Relief. In Plaintiffs Seventh Claim for Relief, he alleges that on May 10, 2007, Defendants Mathews, Hamula, and Colton came to Plaintiffs cell to handcuff him and escort him to “special controls strip cell” for allegedly threatening staff members. Seventh Claim for Relief [# 33] at 2. At that time, Plaintiff requested that Defendant Miklich be made available, and Miklich was brought to participate in Plaintiffs removal from his cell. Id. Plaintiff alleges that after he was handcuffed, Defendant Hamula placed a spit mask over his face, and Plaintiff was then roughly escorted to a secluded strip search area. Id. at 2-3. Plaintiff states that while Defendant Woolfolk was filming the entire incident, Defendants Mathews, Hamula and Colton stripped Plaintiff naked and placed him into restraints. Id. at 3. Plaintiff alleges that the spit mask made it very difficult for him to clear his throat and breathe. Id. Next, Plaintiff alleges that Defendants Hamula and Colton “slammed [him] to the floor very unexpectedly causing him severe excruciating pain to his hip-lower back and began applying pressure to his wrists to the point of breaking them and pushing thumb/knuckle under [Plaintiffs] left ear lobe with great force while he was completely subdued with Hamula and Colton on each side inflicting the worst excruciating pain [Plaintiff] has ever experienced in all his life....” Id. Plaintiff further alleges that this physical pain was inflicted on him by Defendants for over two hours, and that Plaintiff had offered no provocation to prison officials before they began to assault him. Id. Plaintiff further alleges that Defendant Mathews orchestrated the assault and laughed at Plaintiffs pain during the course of the assault. Id. After the assault, Plaintiff states that he could not stand or walk, that the pain in his back was unbearable, he could not turn his neck, and both his wrists were severely numb and swollen. Id. at 3-4. Plaintiff alleges that the actions by Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment.

Plaintiff requests compensatory and punitive damages, in addition to injunctive relief. Complaint [# 3] at 34-35.

II. Standard of Review

A. Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56

In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion, and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. 5. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Fed. R.Civ.P. 56(c) provides that summary judgment may be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When the movant has the burden of proof on a claim for which he seeks judgment, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R.Civ.P. 56(e). When making a motion for summary judgment, a party with the burden of proof may not simply rest on assertions contained within his pleadings, but must come forward by adducing specific facts supporting the claim. BancOklahoma Mart. Corp. v. Capital Title Co., 194 F.3d 1089, 1097 (10th Cir.1999). The facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998).

The moving party bears the initial burden of demonstrating, by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985).

B. Motion for Judgment on the Pleadings Pursuant to Fed. R.Civ.P. 12(c)

A motion for judgment on the pleadings brought pursuant to Fed. R.Civ.P. 12(c) is reviewed under a similar standard as a motion brought pursuant to Fed.R.Civ.P. 12(b)(6). Therefore, in ruling on a motion for judgment on the pleadings, courts should look to the specific allegations of the complaint to determine whether they plausibly support a legal claim for relief, that is, a complaint must include “enough facts to state a claim for relief that is plausible on its face.” TON Services, Inc. v. Qwest Corp., 493 F.3d 1225, 1236 (10th Cir.2007); Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007). The Court accepts as true the wellpled factual allegations of the opposing party and draws all reasonable inferences in his favor. Qwest Comm’ns Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D.Cal.2002). “Uncontested allegations to which the other party had an opportunity to respond are taken as true.” Id.

Further, “[j]udgment on the pleadings should not be granted ‘unless the moving party clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.’ ” Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir.2006) (citation omitted); Qwest, 208 F.R.D. at 291 (holding that judgment on the pleadings is appropriate where the Answer fails to raise issues of fact or affirmative defenses “which, if proved, would defeat plaintiffs recovery”). In ruling on a motion for judgment on the pleadings, the Court may consider the Complaint, any material that is attached to the Complaint, and the Answer. See Park Univ., 442 F.3d at 1244; Qwest, 208 F.R.D. at 291. The allegations in Plaintiffs Complaint “must be taken as true to the extent they are uncontroverted by [Defendants’] affidavits.” Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). In addition, only well-pled facts, as opposed to mere conclusory allegations, must be accepted as true. Id.

Finally, because Plaintiff here is proceeding pro se, the Court construes his pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.2003). Even so, Plaintiff still retains “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This burden remains because a “pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Id.

III. Analysis

This action is brought pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit at equity, or other proper proceeding for redress.

A. First Motion for Summary Judgment

Defendants move for summary judgment on Plaintiffs First, Second, Third, Fourth and Seventh Claims for Relief. First Motion for Summary Judgment [# 176] at 2. The Court will analyze Defendants’ arguments in the order presented in the Motion.

1. Failure to Exhaust Administrative Remedies

Defendants first contend that Plaintiff failed to exhaust his administrative remedies, arguing that Plaintiff failed to file any administrative grievances against the Defendants named in his First, Second, Third, Fourth and Seventh Claims for Relief. First Motion for Summary Judgment [# 177] at 3, 5-6.

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e, requires that a claim regarding prison conditions must first be exhausted at the facility level before a prisoner may challenge those conditions in federal court. Specifically, the exhaustion provision provides:

No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 200-01, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”). However, the burden is not on the plaintiff to sufficiently plead exhaustion or attach exhibits proving exhaustion. Jones, 549 U.S. at 201, 127 S.Ct. 910. Instead, the burden is on Defendants to assert a failure to exhaust in their dispositive motion. The failure to exhaust defense is generally viewed as an allegation that the complaint fails to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), see id., but the Court analyzes the issue here pursuant to Fed.R.Civ.P. 56. As such, Defendants have the burden of proof on the exhaustion issue and Defendants must establish every element of this affirmative defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(e).

It is axiomatic that when bringing a motion for summary judgment, a party with the burden of proof may not simply rest on assertions contained within his pleadings, but must come forward with specific facts supporting the claim. BancOklahoma Mort. Corp., 194 F.3d at 1097. The facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits. Adler, 144 F.3d at 671. However, in apparent disregard of their burden to properly support both their motion for summary judgment and their argument that Plaintiff failed to exhaust his administrative remedies, Defendants have failed to attach any affidavits or deposition transcripts to their First Motion for Summary Judgment. See First Motion for Summary Judgment [# 177] at 1-8. Indeed, Defendants’ First Motion for Summary Judgment has no exhibits nor supporting evidence whatsoever. See id. As such, Defendants have failed to present any evidence or specific facts supporting their affirmative defense, and instead, simply rest on the conclusory assertions contained in their pleadings, the one thing they may not do on a motion for summary judgment. See BancOklahoma Mort. Corp., 194 F.3d at 1097. Accordingly, Defendants have not met their burden of proving Plaintiffs failure to exhaust his administrative remedies, and the Court declines to grant summary judgment on these grounds.

2. Statute of Limitations

Second, Defendants argue that Plaintiffs first four claims for relief are barred by the applicable Colorado statute of limitations, Colo.Rev.Stat. § 13-80-102. First Motion for Summary Judgment [# 177] at 4.

Actions brought pursuant to 42 U.S.C. § 1983 are subject to the general personal injury limitation period of the state in which the action arose. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir.1994). In Colorado, the limitation on a personal injury claim brought pursuant to Section 1983 is two years. See Colo.Rev. Stat. § 13-80-102(l)(g) (creating a two-year limitation period for “[a]ll actions upon liability created by a federal statute where no period of limitation is provided in said federal statute” and for “[a]ll other actions of every kind for which no other period of limitation is provided”); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993) (applying Colo.Rev.Stat. § 13-80-102 to a § 1983 claim). However, federal law rather than state law determines when a cause of action accrues. See Indus. Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir.1994) . Pursuant to federal law, “[t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.” Id. at 969. That is, “[a] civil rights action accrues when facts that would support a cause of action are or should be apparent.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir.1995) (citations omitted). Further, once a defendant satisfies his initial burden to show that a claim is untimely, the burden shifts to Plaintiff to establish a later accrual date of the statute of limitations or to show that there is a basis to toll the accrual date. See Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980).

Plaintiff . did not initiate his case in this Court until June 18, 2006, the date when he signed and dated his Complaint. Therefore, pursuant to the two year statute of limitations set forth in Colo.Rev.Stat. § 13-80-102, any acts occurring prior to June 18, 2004 are time barred and must be dismissed by the Court unless Plaintiff establishes that the limitations period is subject to tolling. Accordingly, the Court must examine the dates alleged in Plaintiffs first four claims for relief to determine if any of the conduct falls outside the applicable statute of limitations period.

a. First Claim for Relief

The time-line of the acts alleged in Plaintiffs First Claim for Relief is as follows: First, Plaintiff alleges that he was assaulted on October 16, 2003 by Defendant Haucks, and the assault was witnessed and/or encouraged by Defendants Perry, Celia and Cooper. Complaint [# 3] at 8-9. Plaintiff further alleges that Defendant Gallagher assaulted him on a separate occasion on October 16, 2003, and that Defendant Montoya witnessed this assault. Id. at 9. In addition, Plaintiff alleges that on November 21, 2003, Defendants Binder and Valdez punched Plaintiff in his left eye and left rib. Id. at 20. Next, and prior to his transfer to E-Unit on January 27, 2004, Plaintiff alleges that Defendants Celia, Haucks and Jackson contaminated his meals by spitting in them. Id. at 20. Then, Plaintiff alleges that on January 27, 2004, he was transferred to E-Unit where Defendants Brown, Sims and Diclusion threatened Plaintiff with death, punched, kicked and spit on Plaintiff, tainted his meals, and generally engaged in severe physical and mental harassment of Plaintiff. Id. at 21. Finally, Plaintiff alleges that on July 20, 2004, he was transferred to C-Unit where Defendants Mora and Olivett verbally harassed Plaintiff, contaminated his meals, and sexually molested him. Id. at 22. Plaintiff alleges that during this time he lost approximately thirty pounds due to Defendants’ refusal to feed him uncontaminated food. Id.

Plaintiff commenced his action on June 18, 2006, and thus, only those events occurring on or after June 18, 2004 would be timely. Accordingly, many of the above events, by Plaintiffs own omission, occurred before June 18, 2006, and are therefore untimely and properly dismissed by the Court unless Plaintiff establishes that the statute of limitations period is subject to tolling. See Colo.Rev.Stat. § 13 — 80—102(l)(g); Blake, 997 F.2d at 750.

The issue of tolling is governed by Colorado state law. See Fratus, 49 F.3d at 675. Colorado’s equitable tolling provisions are “limited to situations in which either the defendant has wrongfully impeded the plaintiffs ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo.1996). Colorado courts have held that the doctrine of tolling is “not favored,” and the Colorado Supreme Court “has never found” the requisite “extraordinary circumstances” to exist such that tolling could be applied to a statute of limitations. Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 858 (Colo.Ct.App.2007); Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 150 (Colo.2007). Finally, the burden lies with Plaintiff to prove that the statute of limitations has been equitably tolled in this case. See Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir.2007).

In this case, although Plaintiff generally asserts that Defendants prevented him from exhausting his administrative remedies, he does not assert that he is entitled to tolling on the statute of limitations, nor that he was hindered from filing his Complaint until June of 2006. See Response [# 185] at 2-3. Plaintiff does not set forth his diligent efforts to file any complaint prior to June 2006, and generally fails to make any argument that “extraordinary circumstances” exist in his case such that the statute of limitations should be tolled. Olson, 174 P.3d at 858. Further, there is no evidence before the Court that Defendants wrongfully impeded Plaintiff from asserting his claims until June of 2006 or that extraordinary circumstances exist. See Dean Witter Reynolds, Inc., 911 P.2d at 1099. Plaintiff has failed to meet his burden such that equitable tolling could be applied to his case, and the Court therefore finds that Plaintiff is not entitled to equitable tolling. See Roberts, 484 F.3d at 1241. As such, the Court finds that Plaintiffs claims against Defendants Haucks, Perry, Celia, Cooper, Gallagher, Montoya, Jackson, Binder and Valdez for the events occurring before June 18, 2004, as set forth above, are barred by the statute of limitations period and are properly dismissed by the Court. See Colo.Rev.Stat. § 13-80-102(l)(g); Blake, 997 F.2d at 750.

However, Plaintiffs First Claim for Relief also alleges that on January 27, 2004, he was transferred to E-Unit where Defendants Brown, Sims and Diclusion threatened Plaintiff with death, punched, kicked and spit on Plaintiff, tainted his meals, and generally engaged in severe physical and mental harassment of Plaintiff. Complaint [# 3] at 21. Second, Plaintiff alleges that on July 20, 2004, he was transferred to “C-Unit” where Defendants Mora and Olivett verbally harassed Plaintiff, contaminated his meals, and sexually molested him. Id. at 22. Plaintiffs statements regarding the alleged harassment by Defendants Brown, Sims and Diclusion do not allow the Court to definitively determine that all of this conduct occurred outside the statute of limitations period, because it appears that a portion of the alleged constitutional violations