PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 59] filed on March 5, 2012. The magistrate judge recommends that the defendants' motion to dismiss [Docket No. 30] plaintiff's second amended complaint [Docket No. 28] be granted in part and denied in part. Objections to the Recommendation were due on March 22, 2012. Defendants have not filed any objections to the Recommendation. On March 19, 2012, plaintiff requested leave to file excess pages for his objections. See Docket No. 60.
As the Recommendation recounts,
Docket No. 59 at 1-2 (citations and footnote omitted). Moreover, plaintiff contends that the officers seized his luggage upon his arrest but did not later return all of his bags.
In his first claim for relief, plaintiff contends that, despite repeated requests, defendants deprived him of drinking water.
Lewis v. McKinley County Bd. of County Comm'rs, 425 F. App'x 723, 727-28 (10th Cir. 2011) (citations omitted).
From the complaint, the Court cannot determine whether plaintiff was denied water for three hours or three days. Cf. Hartsfield v. Vidor, 199 F.3d 305, 309-10 (6th Cir. 1999) ("Plaintiff alleges cruel and unusual punishment in that defendants were deliberately indifferent to his health and safety by not allowing him to use the toilet, allowing him to sit in his own urine and in not providing fresh drinking water for two 8-hour periods. . . . [W]e have previously held that deprivations of fresh water and access to the toilet for a 20-hour period, while harsh, were not cruel and unusual punishment."); Brown v. Gray, 2011 WL 6091738, at *21 (D. Kan. Dec. 7, 2011) ("Brown alleges that he was deprived of water for only a couple of hours and then the water was turned on. Such a short period of time is insufficient to state a claim under the Eighth Amendment."). Furthermore, the complaint lacks any allegation that plaintiff informed defendants, or defendants otherwise knew, that plaintiff was facing a medical emergency requiring immediate drinking water.
In his second claim for relief, plaintiff alleges that defendants' failure to return some of his luggage constitutes a deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment. The Supreme Court has held that "the Due Process Clause is not violated when a state employee, by a random and unauthorized act, negligently deprives an individual of property, if the state makes available a meaningful post deprivation remedy." Lavicky v. Burnett, 758 F.2d 468, 472 (10th Cir. 1985) (citing Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Plaintiff's complaint neither alleges the absence of a meaningful post-deprivation remedy
In his third claim for relief, plaintiff contends that he was subjected to excessive force when one or more defendants (1) handcuffed his hands and legs too tightly and (2) pushed his head into water on the cell floor from a toilet that plaintiff caused to overflow. The magistrate judge determined that the Fourteenth Amendment, rather than the Fourth Amendment, is implicated under the circumstances of this case. For the following reasons, the Court believes that it is best to resolve that issue when necessary since the difference in the two standards is immaterial to plaintiff's excessive force claim at this stage.
In regard to plaintiff's allegations regarding the use of handcuffs, the Recommendation concluded that plaintiff's allegations stated a claim for violation of the Fourteenth Amendment which overcame defendants' assertion of qualified immunity. Defendants have not filed any objection to that aspect of the Recommendation. The Court has satisfied itself that there is "no clear error on the face of the record," Fed. R. Civ. P. 72(b), Advisory Committee Notes,
The Court now turns to plaintiff's allegation that defendants shoved his face into water on the floor of the detention cell. Plaintiff alleges that, while handcuffed to the bed, he used his free foot to hold the toilet handle down, thus causing it to overflow onto the floor. See Docket No. 28 at 6, ¶ 34. Plaintiff hoped this would cause someone to help him. See id. In support of their motion to dismiss, defendants filed a video and audio recording of the time plaintiff spent in the detention cell. Plaintiff references the videotape in his complaint, apparently as a means of corroborating his version of the events, see Docket No. 28 at 2, ¶ 1; id. at 13, ¶ 77 (citing "video recordings" that "show supervisors that individual officers are committing misconduct of the type suffered by Mr. Osei"), but argues that the videotape should not be considered on this motion to dismiss. Cf. Berry v. Safer, 2004 WL 1961675, at *2 (S.D. Miss. July 9, 2004) (considering a videotape and transcript on a motion to dismiss where they were "clearly referred to in the complaint, are central to the dispute, and their authenticity is not questioned").
"[W]hen such a conversion occurs, the district court `must provide the parties with notice so that all factual allegations may be met with countervailing evidence.'" Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005) (quoting Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005)). In light of defendants' submission of the video, plaintiff's reliance on the videotape in response, and plaintiff's recognition that the Court might consider it to resolve defendants' motion, see Docket No. 42 at 25-27, appropriate notice has arguably been provided. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996) ("`[W]hen a party submits material beyond the pleadings in support of or opposing a motion to dismiss, the prior action on the part of the part[y] puts [him] on notice that the judge may treat the motion as a Rule 56 motion.'") (quoting Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.1987)); see also Lynch v. Bulman, No. 06-1018, 2007 WL 2993612, at *2 n.2 (10th Cir. Oct. 15, 2007) ("[I]t is clear from Lynch's responses to the motions that he was aware the district court could convert them into motions for summary judgment. Moreover, he had the opportunity to introduce evidence not contained in the complaint; in fact, his responses to Defendants' motions referred to materials outside of the complaint.") (citations omitted). The Court, however, declines to resolve the issue pursuant to Rule 56 on the present state of the briefing. The Court's Practice Standards outline the manner in which factual issues should be framed at the summary judgment stage. See generally Practice Standards (Civil cases), Judge Philip A. Brimmer § III.F.3. The Court, therefore, will deny this aspect of defendants' motion and grant defendants leave to file a motion for summary judgment on this issue within thirty days of entry of this order.
Plaintiff asserts his fifth claim for relief pursuant to Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658 (1978), against defendant City and County of Denver, for which the individual defendants worked. Plaintiff's complaint simply recites the legal elements of such a claim while providing virtually no factual allegations in support. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). The Court therefore finds that this claim is subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(6).
For the foregoing reasons, it is