FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                UNITED STATES COURT OF APPEALS June 10, 2014
                                                    Elisabeth A. Shumaker
                             TENTH CIRCUIT              Clerk of Court



LEROY DAMASIO FRESQUEZ,

           Plaintiff - Appellant,

v.                                                No. 13-1155
                                     (D.C. No. 1:11-CV-02712-REB-KMT)
SHERIFF TED MINKS; MICHAEL                         (D. Colo.)
FISH, Detention Service Manager;
JOHN DOE (Captain), March 5, 2010;
LT. MARTINALLI; LT. G. GITTIN;
LT. J. LUCAS; ADMINISTRATIVE
SGT. RENFRO; SGT. TROY BETKA;
SGT. SCOTT HAPP; SGT. STEVEN
WYGANT; OFFICER KATHERINE
FEROE; DEPUTY SHERIFF
CRUMBAKER; DEPUTY SHERIFF
RYAN VIERS; DEPUTY SHERIFF
DUSTIN DYELING; DEPUTY
SHERIFF ANTHONY KOTRIS;
DEPUTY SHERIFF DONALD
SPRINGFIELD; DEPUTY SHERIFF
HOLLEY; DEPUTY SHERIFF
JAMES GELEUDE; DEPUTY
SHERIFF JASON RICHARDSON;
DEPUTY SHERIFF REID PERRY;
DEPUTY SHERIFF WILLIAM
BOHM; DEPUTY SHERIFF ERIK
BOUGHAM; DEPUTY SHERIFF
HERBERT LONGSHORE, DEPUTY
SHERIFF #1958 (Name Unknown);
COUNSELOR MIKE COLLINS;
COUNSELOR SUPERVISOR DEBRA
ELUDO; CHANTEL CORKLE, Atty.;
DOUGLAS K. WILSON, Atty.;
DENNIS HALL, Jefferson County
Judge; WRITER MOTT, Atty.;
LAURA WASSMUTH, Atty.,
 CORRECTIONAL HEALTHCARE
 MANAGEMENT; CLAUDIA VAN
 BUREN, /HSA; RAYMOND HERR,
 Responsible Physician; TRACY
 HAINES, LPN; KATHERINE
 BECERRA, RN,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Plaintiff Leroy Fresquez, an inmate currently incarcerated in a Colorado

state penitentiary, filed a pro se § 1983 complaint alleging his constitutional

rights were violated while he was being held at the Jefferson County jail. He

claimed a sheriff’s deputy injured him and that his medical needs following the

incident went untreated. He also alleged jail personnel interfered with his access

to the courts and tampered with his legal mail. The defendants named in his

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

                                         -2-
complaint included sheriff’s office employees and correctional healthcare

personnel.

       The magistrate judge held that Plaintiff’s complaint failed to comply with

Rule 8 of the Federal Rules of Civil Procedure and ordered Plaintiff to file an

amended complaint. Plaintiff did so, but the magistrate judge concluded that the

first amended complaint still failed to comply with Rule 8’s pleading

requirements. Plaintiff accordingly filed a second amended complaint. The two

sets of Defendants filed separate motions to dismiss the case, arguing that

Plaintiff’s complaint failed to state a claim on which relief could be granted.

Plaintiff filed responses to these motions, as well as a motion to amend the

complaint. The magistrate judge recommended that the motions to dismiss be

granted and that the motion to amend the complaint be denied on the basis of

futility. Plaintiff objected, but the district court adopted the magistrate judge’s

recommendations, granted the motions to dismiss, and denied leave to amend the

complaint. This appeal followed.

       We review de novo the district court’s dismissal of a complaint for failure

to state a claim upon which relief can be granted. Casanova v. Ulibarri, 

, 1124 (10th Cir. 2010). A complaint may only be dismissed for failure to

state a claim if it fails to “contain[] ‘enough facts to state a claim to relief that is

plausible on its face.’” 

Atl. Corp. v. Twombly, 

,

570 (2007)). In our review, “[w]e accept as true all well-pleaded factual

                                            -3-
allegations and view these allegations in the light most favorable to the plaintiff.”

marks and ellipsis omitted). Because Plaintiff is

proceeding pro se, his “pleadings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon,

, 1110 (10th Cir. 1991). “[T]his rule means that if the court can

reasonably read the pleadings to state a valid claim on which the plaintiff could

prevail, it should do so despite the plaintiff’s failure to cite proper legal authority,

his confusion of various legal theories, his poor syntax and sentence construction,

or his unfamiliarity with pleading requirements.” 

pro se

litigants are to be given reasonable opportunity to remedy the defects in their

pleadings.” 

n.3. We generally review the district court’s denial of a

motion for leave to amend the complaint for an abuse of discretion. See Cohen v.

Longshore, 

, 1314 (10th Cir. 2010). However, “when this denial is

based on a determination that amendment would be futile, our review for abuse of

discretion includes de novo review of the legal basis for the finding of futility.”

marks omitted). “We thus consider de novo whether it is

patently obvious that the plaintiff could not prevail on the facts alleged, and

allowing him an opportunity to amend his complaint would be futile.” 

marks omitted).

      We turn then to the merits of Plaintiff’s claims for relief, beginning with

his claims against the deputy sheriff who allegedly injured him. In his second

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amended complaint, Plaintiff listed a claim for “constitutional torts” that included

the following allegation:

      On March 5th, 2010, Deputy Sheriff Ryan Viers without need or
      provocation grabs Plaintiff while drinking coffee and slams face first
      into the ground breaking Plaintiff’s teeth to the nerves/roots, cuts in
      mouth, constitutes the tort of assault and battery, harassment CRS
      18-9-111, use of force pursuant C.R.S. 18-8-802(1)(a) and 18-8-803
      and retaliating against a witness pursuant CRS 18-8-706(1), first
      degree misconduct pursuant CRS 18-8-404(b), biased motivated acts
      pursuant CRS 18-9-121, under the law of the State of Colorado
      subjecting Plaintiff to intimidation, humiliation, physical injury,
      mental anguish, loss of enjoyment in life, fear, distress.

(R. at 132 (capitalization, punctuation, and spelling standardized).) In his

proposed third amended complaint, Plaintiff described this claim against Deputy

Sheriff Viers as a claim of “excessive force prohibited by the Constitution, Fourth

Amendment of the United States Constitution,” and he again attempted to support

this claim by citations to Colorado criminal statutes relating to, among other

things, assault and battery, retaliation, and “use of excessive force.” (R. at 574.)

The magistrate judge concluded that these allegations failed to state a claim for

relief against Deputy Sheriff Viers solely on the basis that the Colorado criminal

statutes cited in this claim did not provide a private right of action. However, in

so holding, the magistrate judge failed to construe Plaintiff’s pro se complaint

liberally. As we stated in Hall, “if the court can reasonably read the pleadings to

state a valid claim on which the plaintiff could prevail, it should do so despite the

plaintiff’s failure to cite proper legal authority, his confusion of various legal


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theories, his poor syntax and sentence construction, or his unfamiliarity with

pleading requirements.” 

. Although Plaintiff cited to

inapplicable legal authorities in his complaint and confused various legal theories,

we are persuaded that his complaint reasonably can, and should, be read to state a

claim of excessive force. 1 We are also persuaded that this is a claim on which

Plaintiff could prevail, taking the facts alleged in his complaint as true and

viewing the allegations in the light most favorable to him. Contrary to

Defendants’ arguments, the allegations in Plaintiff’s complaint, taken in the light

most favorable to him, do not establish that Deputy Sheriff Viers only employed

force in a good faith effort to maintain order in the jail. Plaintiff has met his

“burden of alleging sufficient facts on which a recognized legal claim could be

based,” 

district court accordingly erred in dismissing his claim against

Deputy Sheriff Viers.

      Defendants contend that we can affirm the district court’s dismissal of this

claim on an alternative ground pursuant to Heck v. Humphrey, 

(1994). Defendants assert that Plaintiff pled guilty to a count of obstruction of an



      1
        Certain allegations in the various iterations of Plaintiff’s complaint
suggest he might also have been inartfully attempting to raise a claim of First
Amendment retaliation, since he suggests that he believes the alleged assault may
have been motivated by his filing of grievances and cases against various
individuals in the sheriff’s office. However, Plaintiff’s allegations as they
presently stand are too conclusory and vague to state a claim for relief on this
ground.

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officer for an offence occurring on March 5, 2010, and they contend this plea

proves that Plaintiff was resisting Deputy Sheriff Viers’ attempts to maintain

order in the prison and therefore the deputy sheriff’s use of force was reasonable

under the circumstances. Defendants argue that a ruling in Plaintiff’s favor on his

excessive force claim would thus necessarily call into question the validity of his

conviction for obstruction of an officer. However, there is a dispute as to whether

the obstruction conviction stemmed from the incident with Deputy Sheriff Viers

or from a subsequent altercation between Plaintiff and other deputy sheriffs.

Based on the record before us at this stage in the proceedings, it is not at all clear

that Plaintiff’s obstruction conviction would necessarily prove he was obstructing

Deputy Sheriff Viers prior to or at the time of the deputy sheriff’s alleged use of

force. Moreover, we reject Defendants’ argument that slamming a prison inmate

on the ground with enough force to break his teeth is necessarily a reasonable use

of force so long as the inmate did something “obstructive” first. See Northington

v. Jackson, 

, 1523-24 (10th Cir. 1992) (noting that the “unnecessary

and wanton infliction of pain” can give rise to a claim of excessive force even if

there is a prison disturbance, and holding that pertinent factors for determining

whether this standard has been met include “the relationship between the need for

application of force and the amount of force used, the threat reasonably perceived

by the responsible officials, and any efforts made to temper the severity of a

forceful response” (internal quotation marks omitted)); cf. Martinez v. City of

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Albuquerque, 

, 1127 (10th Cir. 1999) (“Thus, whether Martinez

resisted arrested by failing to heed instructions and closing his vehicle’s window

on the officer’s arm is likewise a question separate and distinct from whether the

police officers exercised excessive or unreasonable force in effectuating his

arrest. The state court’s finding that Martinez resisted a lawful arrest . . . may

coexist with a finding that the police officers used excessive force to subdue

him.”). A favorable finding for Plaintiff on his excessive force claim would not

necessarily call into question his conviction for obstruction, and we accordingly

reject Defendants’ argument that Heck bars this claim. While we state no opinion

on the ultimate merits of this claim, we hold that the district court erred in

dismissing Plaintiff’s excessive force claim at this stage of the proceedings.

      We turn next to Plaintiff’s claims of deliberate indifference to medical

needs based on the alleged failure of various sheriff’s office employees and

healthcare personnel to ensure that Plaintiff received appropriate medical and/or

dental care for his broken teeth. The magistrate judge concluded that this claim

failed because Plaintiff alleged at most a negligent failure to provide adequate

medical care, not a denial of medical treatment. The magistrate judge stated:

      As noted in the [second amended complaint], shortly after the March
      5, 2010 incident, Plaintiff was taken to the medical unit and treated
      by Defendant Nurse Katherine Becerra. Less than a week later, on
      March 11, 2010, Plaintiff was also seen again and treated by
      Defendant Nurse Tracy Haines. ([Second Amended Complaint] at
      15.) Neither nurse made a determination that Plaintiff’s injuries
      were sufficiently serious to warrant referral to a dentist for further

                                          -8-
      care. (Id.)

(R. at 805.) If these purported facts indeed appeared in Plaintiff’s complaint, we

might well agree with the magistrate judge that Plaintiff had failed to state a

claim of deliberate indifference to medical needs. But cf. Oxendine v. Kaplan,

, 1277 n.7 (10th Cir. 2001); Hunt v. Uphoff, 

, 1224

(10th Cir. 1999) (“Nor does the fact that he has seen numerous doctors

necessarily mean that he received treatment for serious medical needs, i.e., that

treatment was prescribed at all or that prescribed treatment was provided.”)

      However, contrary to the magistrate judge’s characterization of the

complaint, nowhere in any of Plaintiff’s various iterations of his complaint does

he ever state he was examined or treated by Nurse Becerra or Nurse Haines. In

his second amended complaint, Plaintiff simply alleged that “[o]n March 5th 2010

Defendant Katherine Becerra disregarded to act or tell deputy sheriff that Plaintiff

needed to be seen by a dentist . . . for injuries to the mouth/teeth[, which]

constitutes deliberate indifference to serious medical needs.” (R. at 127

(capitalization standardized.) Similarly, Plaintiff alleged:

      On March 11 2010, Plaintiff informs Defendant Tracy Haines of the
      essential need for dental/medical treatment for injuries. Tracy
      Haines disregards the Plaintiff treatment and does nothing, due to
      being biased towards Plaintiff constitutes deliberate indifference to
      serious medical needs, full well aware Plaintiff’s with broken teeth to
      the roots/nerves with chronic pain and suffering, cuts in mouth, back
      pains, under duress, loss of enjoyment in life, liberty, mental
      anguish/distress.


                                          -9-
(R. at 129 (capitalization and spelling standardized).) The magistrate judge

apparently assumed from these allegations that Plaintiff had been examined and

treated by Nurse Becerra and Nurse Haines and that he simply disagreed with the

type of medical treatment provided. However, this assumption finds no support in

the sparse allegations of Plaintiff’s second amended complaint, and it is belied by

the allegations in the other iterations of Plaintiff’s complaint. In the earlier

versions of his complaint, Plaintiff alleged Nurse Becerra knew of his medical

needs because she was present at the time of the incident with Deputy Sheriff

Viers but then failed to tell the correctional officers that Plaintiff’s broken teeth

would need to be treated. Similarly, Plaintiff alleged that Nurse Haines was

aware of his medical needs because she was “fully advised through medical

request forms and inmate grievance forms of the essential need to see a

dentist/medical treatment for injuries.” (R. at 99 (first amended complaint at 14)

(brackets omitted).) Plaintiff has never alleged that either Nurse Becerra or Nurse

Haines conducted an examination or provided any type of medical treatment to

him. Viewing the allegations in Plaintiff’s second amended complaint in the

context of his other complaints, it is clear that Plaintiff has consistently alleged

he was not provided with any medical or dental treatment despite correctional

officers’ and healthcare employees’ awareness of his injury.

      Thus, contrary to the magistrate judge’s assumption, Plaintiff is not simply

challenging the type of treatment provided: he is instead arguing that he was not

                                          -10-
provided with any type of treatment at all, causing him to remain in significant

pain in violation of his Eighth Amendment rights. Because the magistrate judge

misunderstood the nature of Plaintiff’s allegations, she failed to analyze whether

the facts as actually alleged in Plaintiff’s complaint would be sufficient to state a

claim of deliberate indifference against any of the correctional officers or

healthcare personnel. On remand, the court should consider whether the facts as

alleged in Plaintiff’s complaint would be sufficient to state a claim against any of

the Defendants. The court should also permit Plaintiff an opportunity to amend

his complaint to plead his allegations with more specificity and clarity.

      We note that the district court denied Plaintiff’s numerous motions for

counsel based in part upon the court’s conclusion that Plaintiff’s claims were not

sufficiently strong to warrant requesting counsel to represent Plaintiff. Because

we disagree with the court’s assessment of the strength of Plaintiff’s claims, we

instruct the court to reconsider on remand whether counsel should be appointed to

represent Plaintiff in this action. Furthermore, while we agree with the magistrate

judge that Plaintiff’s remaining claims, as presently alleged, fail to state a claim

on which relief may be granted, we note that some of these claims could possibly

be amended, particularly with the assistance of counsel, to state a valid claim for

relief. We therefore reverse and remand the entire order of dismissal for

reconsideration below.

      For the foregoing reasons, we REVERSE and REMAND the district

                                         -11-
court’s order dismissing this case. We GRANT Plaintiff’s motion to proceed in

forma pauperis on appeal and remind him of his obligation to continue making

partial payments until the entire filing fee has been paid in full. We DENY

Plaintiff’s motion for leave to file a reply brief appendix, and we accordingly

DISMISS AS MOOT Defendants’ motion to strike the reply brief appendix. We

have not considered the materials attached to Plaintiff’s reply brief in our

consideration of the merits of his claims.

                                               Entered for the Court




                                               Monroe G. McKay

                                               Circuit Judge




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