CRAIG B. SHAFFER, Magistrate Judge.
This matter comes before the court on a Motion to Dismiss in part (doc. #36) filed on June 13, 2014 by Defendants Colorado Department of Corrections ("CDOC"), Julie Russell, Kathy Howell, Tim Creany, Paul Cline, Lou Archuletta, David Tessiere, Rick Raemisch, Dolores Montoya, and Ron Wager (collectively "CDOC Defendants"). Also before the court is Plaintiff's Motion for Preliminary Injunction (doc #49), filed on August 7, 2014. Pursuant to the Order of Reference dated July 1, 2014, this civil action was referred to the Magistrate Judge "for all purposes" pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). (See Doc. #44). This court has carefully considered the motions and related briefing, the entire case file, the comments offered by the parties during the June 30, 2014 Scheduling Conference and July 17, 2014 Status Conference, and applicable case law. For the following reasons, I grant the CDOC Defendants' Motion to Dismiss with leave to amend the Eighth Amendment medical claim as asserted against Defendant Tessiere and deny Plaintiff's Motion for Preliminary Injunction.
Mr. Brooks, a pro se prisoner incarcerated at the Fremont Correctional Facility ("FCF") in Canon City, Colorado, filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming the CDOC Defendants as well as Defendants Patrick Blake, David Oba, Angie Turner, and Corrections Corporation of America ("CCA") (collectively "CCA Defendants") violated his Eighth Amendment right against cruel and unusual punishment, Fourteenth Amendment right to due process, First Amendment right for access to the courts, and withheld accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102 et seq.
Plaintiff suffers from chronic ulcerative colitis, which causes inflammation and ulceration of the large intestine. Plaintiff endures symptoms ranging from weight loss and dehydration to intestinal bleeding, rectal bleeding, severe abdominal pain, and muscle atrophy, and is plagued by the persistent need to use the restroom which can result in his taking up to thirty bathroom trips a day. (See Doc. #11 at p. 13). Plaintiff believes his condition can be managed with "appropriate medications, dietary supplementation, and exercise." (Doc. #11 at p. 13). Plaintiff was diagnosed with ulcerative colitis prior to entering the custody of CDOC in 2009, at which time he measured 6 feet, 3 inches and weighed 143 pounds. (See doc. #51 at ¶ 9, doc. #51-1 at ¶ 16).
Plaintiff was suffering from aggravated symptoms of ulcerative colitis when he was transferred to Bent County Correctional Facility ("BCCF") in May 2010. Plaintiff saw Defendant Oba in March 2011 after multiple requests to see a doctor, and was prescribed a gluten-free diet.
Plaintiff was transferred from BCCF to Colorado Territorial Correctional Facility ("CTCF") on February 9, 2012 and then to FCF on February 14, 2012. (Doc. #11 at pp. 33, 34). Plaintiff alleges he arrived at FCF in a debilitated state of health because he had not received a gluten-free diet while at CTCF. (Id. at p. 34). Plaintiff weighed 150 pounds at this time. (Doc. #51 at ¶ 12, Doc. #51-1 at ¶¶ 21, 25). Pursuant to FCF policy, upon arrival Plaintiff was placed under "lock down" in a holding cell for twenty-three hours daily for four to eight days while the prison registered him as an inmate. (Doc. #11 at p. 34). Following this process, and pursuant to FCF policy, Plaintiff was then kept under lock down until he received a work assignment. Plaintiff alleges that as a result, he could not prepare his own meals and was required to eat glutinous food that caused his intestine to bleed. Defendant Creany, the doctor at FCF who treated Plaintiff for ulcerative colitis, prescribed Prednisone to stop the internal bleeding. Plaintiff alleges he had no choice but to accept the medicine, though Prednisone causes joint pain and other adverse side effects in someone with chronic ulcerative colitis. (See doc. #11 at p. 35). Plaintiff began receiving a gluten-free diet on February 22, 2012, approximately one week after he arrived at FCF (id. at p. 37), and he was assigned a job in the prison's kitchen on March 30, 3012, approximately six weeks after arriving at FCF. (Id. at p. 42).
On February 27, 2012, Plaintiff began filing grievances regarding the prison's medical treatment. He complained that "[t]he attempted results of trying to treat my condition thus far have left me incontinent, bleeding, unable to sleep, unable to go to chow, unable to clean myself properly ... I should not be in general population being this sick ... I need to be put into a cell by myself." (Doc. # 11 at pp. 38-9). He did not receive a response. At this time, Plaintiff also began requesting special drinks such as "Boost" and "Ensure" to supplement his gluten-free diet, extra toilet paper, and special passes that would allow him to exercise and eat at undesignated times. (Id. at pp. 37, 38, 39). Pursuant to this request, Defendant Montoya, former Health Services Administrator at FCF, authorized a medical pass in March 2012 that allowed Plaintiff to access the cafeteria if he missed a meal due to his condition. (Id. at p. 39). The medical pass expired after a few months and Defendant Montoya refused to re-issue the pass, or authorize a medical pass allowing Plaintiff to exercise outside of designated times. Defendants Russell, Howell, Creany, Cline, and Tessiere also refused to supply Plaintiff with extra toilet paper.
Plaintiff alleges his condition worsened during March and April 2012 because he did not receive nutritional supplements, his pain medication expired, and his prison job working in the kitchen exacerbated his symptoms. Plaintiff weighed between 144 pounds and 136 pounds in March 2012. (Id. at pp. 40, 42).
On April 2, 2012, Plaintiff undertook a 72-hour trip to visit Dr. Vahil, a gastronentologist, who recommended removing Plaintiff's large intestine. (Doc. #11 at p. 43). Thereafter in April 2012, Plaintiff began receiving Ensure per instruction from Defendant Howell, the CDOC Regional Director of Clinical Services, to Defendant Creany. Later that month, Defendant Creany revised Plaintiff's medical rating, which allowed Plaintiff to obtain a prison job that was more compatible with his condition. At the end of April 2012, CDOC surgeon, Dr. Tim Brown, recommended that Plaintiff undergo a proctocolectomy and temporary ileostomy. (Doc. #11 at p. 45). Plaintiff met with Defendant Creany in May 2012, to ask for another visit with Dr. Vahil to discuss alternative surgeries and treatments.
On June 8, 2012, Plaintiff attended a meeting with Defendants Creany, Montoya, and Howell, among other case managers, captains, and doctors, which was "specifically held to address Plaintiffs [sic] medical needs, as a response to his and his families [sic] concerns." Doc. #11 at p. 47). Plaintiff alleges that despite this meeting none of his concerns were addressed. In July 2012, Plaintiff received medication prescribed by Dr. Vahil and his condition "dramatically improved." Id. at p. 48. Plaintiff claims that his improvement notwithstanding, he still required a special meal and exercise pass and extra toilet paper, which Defendants refused to provide. Id. A November 19, 2012 blood test ordered by Dr. Vahil suggested that Plaintiff has Chron's disease.
Plaintiff received a gluten-free diet and Ensure without issue until spring of 2013, when CDOC reconfigured the prison system's gluten-free diet, allegedly rendering the meals "inedible" and "calorically insufficient." (Doc. #11 at p. 51, Doc. #49 at ¶ 4). Plaintiff complained about the new diet to Defendant Creany, who arranged for Plaintiff to see FCF's registered dietician, Deborah Cranor, on May 6, 2013. (Doc #49 at ¶ 5, see also Doc. #11 at p. 51). Ms. Cranor reported that Plaintiff's ideal body weight is 190 pounds with a nineteen pound variance, and recommended that Plaintiff drink Ensure "if diet and snacks alone aren't enough to stabilize weight." (Doc. # 49 at ¶ 6 and p. 18, see also Doc. #11 at p. 51). Plaintiff alleges that notwithstanding Ms. Cranor's recommendation, Defendant Tessiere, the Health Services Administrator at FCF, determined Plaintiff did not qualify for Ensure and instructed Defendant Creany not to supply it. (Doc. #11 at p. 51). Plaintiff met with nurse practitioner Sheryl McKim on May 21, 2013 to discuss his dietary needs and Ms. McKim advised Plaintiff that he "will probably be prescribed the ensure supplemental shakes at his next appointment in June." (See doc. #49 at ¶ 9 and p. 20). In August 2013, Defendant Creany again told Plaintiff that Defendant Tessiere had said Plaintiff "does not qualify for [Ensure]," but would authorize the supplemental shakes if Dr. Vahil recommended them. (Doc. #49 at ¶ 13).
Plaintiff's next visit with Dr. Vahil occurred almost one year later, on June 10, 2014, where Dr. Vahil ordered that Plaintiff receive "a gluten-free diet with ensure, one can of ensure three times daily." (Doc. #49 at ¶ 16; Doc. #49-1 at p. 2). Plaintiff began receiving a gluten-free diet plus Ensure drinks on July 21, 2014. (Doc. #49 at ¶ 19). Plaintiff alleges that after only two days the specialized diet was withheld because "Defendant Tessiere allowed another nurse practitioner, Trudy Sicotte, the ability to undermine [] orders, and she [took] away the diet and ensure without excuse." (Id. at ¶ 20). Plaintiff also alleges that Defendant Tessiere "has exercised no control over his medical staff's egregious decisions or acknowledges how ridiculous they are; he's [sic] seems to be completely absent or totally incompetent in performing any of his job duties." (Id. at ¶ 21).
Plaintiff filed his Complaint on October 23, 2013 (doc. #1), and simultaneously filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (doc. #3) and a motion for preliminary injunction (doc. #4). On October 24, 2013, the court granted Plaintiff's § 1915 motion (doc. #5) and ordered Plaintiff to file an amended complaint that complied with Fed. R. Civ. P. 8.
Defendants waived service on March 24, 2014, with the exception of Ms. Foster and Ms. Montoya, who are no longer employed by CDOC (doc. #19). Defendant Montoya was personally served on April 9, 2014. (See Doc. #31). To date, Ms. Foster has not been served. The CCA Defendants waived service on April 2, 2014 (doc. #25). On May 20, 2014, Defendants requested an extension of time to respond to the Amended Complaint (doc. #32), which this court granted on May 21, 2014 (doc. #33). The CCA Defendants filed an Answer to the Amended Complaint on May 27, 2014 (doc. #34), along with CCA's corporate disclosure statement (doc. #35).
Defendants filed a Motion to Dismiss the Amended Complaint in part and an Answer on June 13, 2014. (Doc. #36 and #37). This court held a Scheduling Conference on June 30, 2014, at which the undersigned set a date for a status conference and stayed discovery pending the briefing of the Motion to Dismiss. (Doc. #41). Defendants and CCA Defendants filed their written consent to the Magistrate Judge's jurisdiction on June 30, 2014 (doc. #43), and Plaintiff filed his consent on July 22, 2014 (doc. #47). Plaintiff filed his Response to the Motion to Dismiss on July 14, 2014 (doc. #45). This court held a Status Conference on July 17, 2014, at which the undersigned continued the stay on discovery pending this court's decision on the Motion to Dismiss. (Doc. #46). Defendants filed a Reply in support of their Motion to Dismiss on July 28, 2014 (doc. #48). Plaintiff filed a Motion for Preliminary Injunction on August 7, 2014 (doc. #49), asking the court to order CDOC to provide him with "an acceptable gluten-free diet and ensure nutritional supplements." The CCA Defendants filed a Response to the Motion for Preliminary Injunction on August 27, 2014 (doc. #50), and Defendants filed a Response on August 28, 2014 (doc. #51). Between September 8, 2014 and September 17, 2014, Mr. Brooks as well as non-parties Kavin Smith, Troy Brownlow, James Hunt, and Cesar Briones Madrid submitted declarations in support of Plaintiff's Motion for Preliminary Injunction. (See doc. #52-57). On October 10, 2014, Mr. Brook's mother, non-party Vayah Terra, submitted a declaration in support of the Motion for Preliminary Injunction (doc. #58).
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations ... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The burden is on the plaintiff to frame `a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Because Mr. Brooks is appearing pro se, the court "review[s] [his] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) ("[Court's] role is not to act as [pro se litigant's] advocate"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R. Civ. P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).
To succeed on a motion for a preliminary injunction under Fed. R. Civ. P. 65, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal quotations omitted). Granting such "drastic relief," United States ex. rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), "is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
Three types of preliminary injunctions are disfavored: injunctions that alter the status quo; mandatory injunctions; and injunctions that afford the movant all the relief he could recover following a full trial on the merits. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). In seeking these types of relief, the movant must show that the factors cited above "weigh heavily and compellingly in [his] favor." Id. Finally, Title 18 U.S.C. § 3626(a)(2) requires that, "[i]n any civil action with respect to prison conditions," any "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm."
Plaintiff is suing Defendants Russell, Howell, Creany, Cline, Archuletta, Tessiere, and Wager in their official and individual capacities. Plaintiff is suing Defendant Raemisch in his official capacity only and Defendant Montoya in her individual capacity only. Those Defendants sued in their official capacity are immune from claims for monetary damages and retroactive equitable relief. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72, (1985)). The Eleventh Amendment bars suits against a state by its own citizens, and immunizes state defendants sued in their official capacities from liability for damages or equitable relief. See Johns v. Stuart, 57 F.3d 1544, 1552 (10th Cir. 1995). Furthermore, state employees acting in their official capacities are not "persons" subject to suit under § 1983. Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). Accordingly, Plaintiff cannot pursue a § 1983 claim for damages or declaratory relief against the CDOC Defendants who are sued in their official capacity.
Title 42 U.S.C. § 1983 allows an injured person to seek damages for the violation of his or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988). "[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). "The Eighth Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm." Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (citation omitted). The Eighth Amendment also prohibits "unnecessary and wanton infliction of pain," including "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials may be liable for an Eighth Amendment violation for "indifference ... manifested ... in their response to the prisoner's needs or by ... intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed." Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014).
"The test for constitutional liability of prison officials involves both an objective and a subjective component." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotations and citation omitted). First, the prisoner must "produce objective evidence that the deprivation at issue was in fact `sufficiently serious.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Mata, 427 F.3d at 751 (holding that even a physician's grossly negligent medical judgment is not subject to scrutiny if the prisoner's need for medical treatment was not obvious) (internal quotations and citation omitted). Furthermore, a delay in medical care "only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations and citation omitted). The substantial harm requirement "may be satisfied by lifelong handicap, permanent loss, or considerable pain." Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citation omitted).
Second, under the subjective component, the prisoner must establish deliberate indifference to his serious medical needs by "present[ing] evidence of the prison official's culpable state of mind." Mata, 427 F.3d at 751. "Deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104 (internal quotation and citation omitted). The Tenth Circuit recognizes two types of conduct constituting deliberate indifference. The first occurs when a medical professional fails to properly treat a serious medical condition; the second occurs when a prison official prevents an inmate from receiving treatment or denies him access to medical personnel capable of providing treatment. See Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (internal citations omitted). A prison health official who serves "`solely ... as a gatekeeper for other medical personnel capable of treating the condition' may be held liable under the deliberate indifference standard if she `delays or refuses to fulfill the gatekeeper role.'" Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1211. The subjective standard requires a state of mind "akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm." Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837) (internal quotations and further citation omitted). "`[A]n inadvertent failure to provide adequate medical care' does not rise to a constitutional violation." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Estelle, 429 U.S. at 105-06). The plaintiff must allege that defendants personally participated in the Eighth Amendment violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)). "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence." Self, 439 F.3d at 1231 (internal quotations omitted).
Mr. Brooks claims he suffered cruel and unusual punishment at FCF resulting from various Defendants' failure to authorize (1) an adequate gluten-free diet; (2) extra toilet paper; and (3) passes that would allow him to eat and exercise at undesignated times. Plaintiff claims additional violations of his Eighth Amendment rights resulting from policies implemented at FCF by Defendants Archuletta and Wager, Defendant Cline's decision to transfer him to FCF, and the CDOC's failure to properly train its employees in ADA law. Defendants argue that Plaintiff has not demonstrated a serious medical need, has not established that Defendants Tessiere, Archuetta, and Wager acted with deliberate indifference, and has not alleged that Defendants Howell, Russell, Wager, Archuletta, Cline, and Tessiere personally participated in a constitutional violation. At this stage in the litigation the court must "accept as true all well-pleaded factual allegations" and view those allegations "in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010).
Mr. Brooks alleges he cannot maintain a healthy weight eating the CDOC-sanctioned gluten-free diet without supplemental nutrition in the form of Ensure. Plaintiff is forced to eat glutinous foods to maintain a healthy weight, which aggravates his ulcerative colitis and causes him constant pain and discomfort. Specifically, Plaintiff suffers from internal bleeding, controlled only by pain medication that weakens his joints; incessant urges to use the bathroom that prevent him from obtaining regular meals, exercise, and sleep; and severe dehydration. These allegations establish that Plaintiff has a sufficiently serious medical need for a specific diet.
Plaintiff does not state in the Amended Complaint how long he received Ensure after it was first provided in April 2012 or why the provision ended. However, Plaintiff resumed requesting the supplemental drink in May 2013 and Tessiere allegedly refused to authorize it on the basis that Plaintiff did not qualify. (Doc. #11 at p. 51). This alone is insufficient to demonstrate that Tessiere consciously disregarded a substantial risk to Plaintiff's health or abdicated his duty as gatekeeper. See Mata, 427 F.3d at 751 (citing Sealock, 218 F.3d at 1211). See also Estelle, 429 U.S. at 104-105 (deliberate indifference is manifested by prison personnel "in intentionally denying or delaying access to medical care"). Deliberate indifference lies where "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Self, 439 F.3d at 1231 (quoting Farmer, 511 U.S. at 837) (internal quotations omitted).
This court declines to take judicial notice sua sponte of allegations asserted in Plaintiff's Motion for Preliminary Injunction (see U.S. v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir. 2010) (instructing that a court may take judicial notice of district court filings)), though notes that certain allegations contained therein are relevant to the subjective component of Plaintiff's Eighth Amendment medical claim. Therefore Defendants' Motion to Dismiss in part is granted with leave to amend as to the medical claim raised against Defendant Tessiere. Plaintiff is also given leave to add nurse practitioner Sicotte as a defendant should he choose to file a Second Amended Complaint.
Plaintiff claims Defendants Russell, Howell, Cline, Creany, Montoya, and Tessiere refused to authorize these special items, which were necessary for him to accommodate the symptoms caused by his ulcerative colitis. Plaintiff sought the meal pass so that he could eat before or after designated times in the event he was too ill to attend meals. Though he appears to have requested the pass as a preventative caution (see doc. #11 at p. 39), he also alleges he missed "hundreds of meals" as a result of his medical condition (see doc. #11 at p. 56). Defendant Montoya authorized the meal pass on March 5, 2012. (Id. at p. 39). Plaintiff asked Montoya to renew the pass in June 2012, and she declined. (Id. at p. 47). Plaintiff began receiving a medical diet in February 2012, two weeks after he arrived at FCF, and began receiving Ensure in April 2012, two months after he arrived at FCF. (Doc #11 at pp. 37, 43-44). Therefore, by June 2012 he was receiving a gluten-free diet plus supplemental drinks. Plaintiff does not allege why his ulcerative colitis caused him to continue to miss meals if he was receiving his requested medical diet.
Plaintiff alleges that his condition periodically prevented him from engaging in recreation during the designated hours. However, he does not allege that he was wholly prevented from exercising as a result of Defendants' refusal to authorize a special pass. Denial of a flexible exercise schedule does not give rise to an Eighth Amendment violation. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that an allotted one hour per week in an outdoor exercise facility, while restrictive, did not in and of itself rise to level of an Eighth Amendment violation; and, recognizing that courts have not deemed the denial of fresh air and exercise to be a "per se" Eighth Amendment violation); cf. Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992) ("[A] total or near-total deprivation of exercise or recreational opportunity, without penological justification, violates Eighth Amendment guarantees.") (citations omitted). Moreover, on May 6, 2013, Ms. Cranor recorded that Plaintiff has "[e]nergy to work out daily — primarily weights with basketball at times." (Doc. #49 at p. 18). While "no precise standards have been set forth delineating what constitutes constitutionally sufficient opportunities for exercise," Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996), it is clear from Plaintiff's allegations that he regularly participates in some exercise.
Finally, Plaintiff claims extra toilet paper is necessary to accommodate his increased need to use the restroom arising from the unmanaged ulcerative colitis. Plaintiff does not allege, however, that Defendants refused toilet paper altogether or that the lack of additional toilet paper resulted in serious injury. See Whittington v. Ortiz, 472 F.3d 804, 808 (10th Cir. 2007) ("A deprivation of hygiene items without any corresponding injury would not state an Eighth Amendment violation.") (citation omitted). He claims only that he did not receive his preferred allotment of tissue. Accordingly, Defendants' failure to authorize additional toilet paper did not result in a sufficiently serious deprivation.
Defendants' Motion to Dismiss in part is granted as to the Eighth Amendment conditions of confinement claims with leave to amend as to why Plaintiff required a meal pass after he began receiving his medical diet plus supplements.
Plaintiff alleges that Defendants Archuletta and Wager, the respective Warden and Assistant Warden of FCF, implemented several policies that violated the Eighth Amendment prohibition against cruel and unusual punishment. Pursuant to these policies, each inmate is confined to his cell 24 hours a day for four to eight days upon transfer to FCF. Thereafter, offenders without work assignments are confined to their cells forty hours each week while their fellow inmates report to prison jobs. The inmates are allowed two continuous hours of recreation per day, though the facility does not provide a scheduled interval during which inmates can return to their cells. Plaintiff claims the lock down policies prevented him from engaging in adequate exercise when he arrived at FCF and the recreation policy prevents him from returning to his cell if his symptoms so demand.
"[Section] 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which `subjects, or causes to be subjected' that plaintiff `to the deprivation of any rights ... secured by the Constitution....'" Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (quoting 42 U.S.C. § 1983). Thus, "`the establishment or utilization of an unconstitutional policy or custom can serve as the supervisor's affirmative link to the constitutional violation.... [W]here an official with policymaking authority creates, actively endorses, or implements a policy which is constitutionally infirm, that official may face personal liability for the violations which result from the policy's application.'" Dodds, 614 F.3d at 1199 (quoting Davis v. City of Aurora, 705 F.Supp.2d 1243, 1263-64 (D. Colo. 2010)) (internal quotations omitted). For a plaintiff to succeed under this theory, he must demonstrate: "(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation." Id.
Pursuant to the policies, Plaintiff spent forty-five days in lockdown when he arrived at FCF. (Doc. #11 at p. 61). He does not allege that all exercise was unavailable during this time, or that a physician ordered him to engage in a certain amount of exercise. Plaintiff has established a serious medical need for a specialized diet, not for a specific exercise regimen. However, even if I found that the lock down and recreation policies subjected Plaintiff to the unnecessary and wanton infliction of pain, he has not alleged that Archuletta and Wager acted with deliberate indifference to his medical needs. See Farmer, 511 U.S. at 847 (A prison official acts with deliberate indifference "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."). Plaintiff argues he wrote Archuletta and Wager a letter explaining his concerns and they "continue[d] to maliciously, wantonly, and recklessly allow Plaintiff to suffer further by doing nothing and allowing these unjustified conditions of confinement to continue." (Doc. #11 at pp. 62-63). These allegations do not establish that Archuletta and Wager consciously disregarded a substantial risk that Plaintiff would suffer harm. Furthermore, they fail to establish that these Defendants personally participated in a constitutional violation. See Davis v. Arkansas Valley Corr. Facility, 99 Fed. Appx. 838, 843 (10th Cir. 2004) (holding defendant warden was not implicated under § 1983 merely because plaintiff copied him on correspondence outlining complaints about medical care); see also Crowder v. Lash, 687 F.2d 996, 1005-6 (7th Cir. 1982) (rejecting theory that defendant prison official should be held liable for constitutional violations on the basis that plaintiff had informed him personally and by letter of the "deprivations [plaintiff] had encountered."); Doyle v. Cella, 2008 WL 4490111, at *2 (D. Colo. Sept. 30, 2008) (finding plaintiff's allegation that defendant warden was "made aware" of constitutional violations insufficient to establish personal participation of the defendant); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y. 1997) ("The law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish liability.") (internal citations omitted).
Finally, there is no evidence that the FCF policies are unconstitutional. "`[W]here the policy relied upon is not itself unconstitutional, considerably more proof than a single incident will be necessary in every case to establish both the requisite fault on the part of the [government], and the causal connection between the policy and the constitutional deprivation.'" Anglin v. City of Aspen, 562 F.Supp.2d 1304, 1324 (D. Colo. 2008) (quoting Okla. City v. Tuttle, 471 U.S. 808, 824 (1985) (internal quotations omitted). Plaintiff's allegations would not satisfy this requirement even if he had alleged a constitutional deprivation.
Mr. Brooks claims Defendant Cline acted with deliberate indifference to his medical needs when Cline transferred him from BCCF to FCF, and failed to transfer him out of FCF despite his "pain, suffering, and emotional distress." (Doc. #11 at p. 61). Plaintiff further claims that Cline did not communicate to his superiors concerns expressed by Plaintiff's mother.
Plaintiff alleges in his Amended Complaint that FCF is an unsuitable facility due to its mandatory lockdown and recreation policies that periodically prevent him from partaking in exercise. This cannot serve as the basis for an Eighth Amendment violation because Plaintiff has not established a serious need for a specific amount of exercise, nor has he alleged that exercise is so limited as to give rise to cruel and unusual circumstances. Plaintiff has serious dietary needs as a result of his ulcerative colitis, though his symptoms appear to be manageable if he can adhere to a stringent diet. Plaintiff has not alleged that FCF barred prisoners from receiving special diets or restricted certain foods, or that he was under physician's orders to receive treatment that was not available at FCF. Defendant Tessiere's refusal to authorize Ensure prior to a doctor's order is unrelated to FCF's suitability as a facility. Therefore, Plaintiff has not demonstrated that the conditions of his confinement at FCF are sufficiently serious
Moreover, Plaintiff has not alleged that Defendant Cline acted with deliberate indifference.
Plaintiff alleges that CDOC violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to train its employees with regard to the ADA. Section 1983 authorizes injured parties to seek monetary damages for the violation of a constitutional right by a person acting under color of state law. 42 U.S.C. § 1983. The Department is not a person as contemplated by § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Furthermore, the Department is entitled to Eleventh Amendment immunity for claims seeking monetary damages. The Department is not immune to suits for prospective injunctive relief (see id. at n. 10), however, Plaintiff does not seek such relief here. (See Doc. #11 at pp. 66-67, 71-72).
Plaintiff claims he has a protected interest in being housed at a prison facility that can better accommodate his health needs, and that Defendants violated his Fourteenth Amendment right to due process when they refused to authorize his transfer from FCF. Though not entirely clear, Plaintiff appears to allege the conditions of confinement at FCF present an atypical and significant hardship because of the policies described above regarding mandatory periods of lock down and daily recreation.
The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law. An inmate is not entitled to a particular degree of liberty in prison. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (holding prisoner did not have liberty interest in a general population classification) (citation omitted); see also Meachum v. Fano, 427 U.S. 215, 224 (1976) (following a valid conviction, "the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution."). Nor does an inmate have a protected interest in being housed in a certain prison facility. See Meachum, 427 U.S. at 216. "A protected liberty interest only arises from a transfer to harsher conditions of confinement when an inmate faces an `atypical and significant hardship ... in relation to the ordinary incidents of prison life.'" Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 223 (2005)) (further citation omitted). See also Sandin v. Conner, 515 U.S. 472 (1995) (only liberty interest in prison is freedom from atypical and significant hardship created by restraint, and administrative segregation, in itself, is neither).
The Tenth Circuit has instructed courts to follow a two-fold question in evaluating an inmate's challenge to the conditions of his confinement: "what is the appropriate baseline comparison"; and "how significant must the conditions of confinement deviate from the baseline to create a liberty interest in additional procedural protections." Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007) (assessing whether inmate's administrative segregation violated a liberty interest). The court advised that a few key factors are relevant in answering the baseline question, such as whether: "(1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement; and (4) the placement is indeterminate." Id. The court subsequently clarified that the DiMarco factors are instructive, not dispositive, and the inquiry should consist of "a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Rezaq, 677 F.3d at 1012 n. 5.
There can be no question that FCF's lock down policies further the legitimate penological interest of properly documenting each new prisoner upon arrival prior to assimilating him into the general population, and accounting for each prisoner during the day if he does not report to a prison job. FCF's policy regarding exercise similarly furthers a legitimate penological interest. Two hours of recreation is undoubtedly healthier than one; but without an overarching need to provide inmates the option of returning to their cells after one hour, the benefit of allowing prisoners flexibility in leaving recreation is outweighed by the burden of supplying and coordinating the manpower needed to escort prisoners at various times.
Furthermore, the conditions of Plaintiff's confinement are not extreme. He alleges he spent forty-five days in lock down upon arrival at FCF. Once he received a work assignment he was removed from lock down status. Plaintiff's placement at FCF did not increase the duration of his confinement; and while the placement appears to be indeterminate, the mandatory periods of lock down no longer apply to Plaintiff because the prison has processed his paperwork and assigned him to a job. Plaintiff complains that the two-hour periods of recreation are the only opportunities for an inmate to exercise outside of his cell, and that he cannot always attend recreation because of his health. (Doc. #11 at p. 62). However, this court is unaware of, and Plaintiff has not cited, law indicating that the deprivation of a flexible exercise schedule constitutes an atypical and significant hardship. Cf. Wilkinson, 545 U.S. at 214 (finding atypical and significant hardship created by daily 23-hour lockdown, solitary dining, no outdoor recreation, and no communication with other inmates). Accordingly, the four DiMarco factors weigh against finding a liberty interest.
Finally, to the extent Plaintiff claims the conditions of his confinement were harsher at FCF as a result of an inadequate diet and inconsistent access to medical attention, Plaintiff encountered many of the same problems at FCF as he experienced at BCCF.
Plaintiff also claims he has experienced denial of due process because CDOC has failed to implement policies that allow for the "correct institutional placement of inmates with serious medical needs." (Doc. #11 at p. 68). However, no particular process was constitutionally due or required because Plaintiff was not deprived of any liberty to which he was entitled. See Templeman, 16 F.3d at 371. Nor is the denial of process itself a denial of liberty. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) ("Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement."); Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1570 (10th Cir. 1993). Because Plaintiff had no liberty interest in being housed at a particular prison, the Constitution did not require any particular process to that end.
Plaintiff sued Defendants Russell, Howell, Creany, Cline, Archuletta, Tessiere, Wager, and Montoya in their individual capacities. The doctrine of qualified immunity "shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (internal quotation marks omitted). Qualified immunity is an affirmative defense to section 1983 liability (see Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)); once a defendant asserts the defense, the plaintiff must demonstrate that qualified immunity is not proper by showing that "(1) the defendant's conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation." DeSpain, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255).
I find that Defendants Cline, Archuletta, and Wager are entitled to qualified immunity because Plaintiff has not stated a constitutional claim as to them. To the extent Plaintiff may amend his complaint as to the Eighth Amendment medical claim raised against Defendant Tessiere and the Eighth Amendment confinement claim as to the meal pass, a ruling as to whether Defendants Russell, Howell, Montoya, Tessiere, and Creany are entitled to qualified immunity is premature.
Plaintiff claims that Defendants Russell, Howell, and Tessiere violated the ADA when they failed to supply him with special meal and exercise passes and extra tissue paper. Plaintiff further claims that Defendant Tessiere violated the ADA when he failed to provide him with an adequate gluten-free diet; Defendant Cline violated the ADA by transferring him to FCF and failing to authorize his transfer to a more suitable facility; Defendants Archuletta and Wager violated the ADA by implementing the lock down and recreation policies at FCF; and Defendant CDOC violated the ADA by failing to properly train its employees in ADA law.
Pursuant to Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. This provision extends to discrimination against prisoners. See Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To state a Title II claim, Plaintiff must allege that "(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir. 2007) (citing 42 U.S.C. § 12132) (further citation omitted). Plaintiff must show that he was qualified to receive the benefits he sought and was denied those benefits based solely on his disability. Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005).
An individual is qualified as disabled under the ADA if he has a physical or mental impairment that substantially limits one or more major life activities. See Holt v. Grand Lake, 443 F.3d 762, 765 (10th Cir. 2006). Plaintiff claims the ulcerative colitis is managed with "appropriate medications, dietary supplementation, and exercise" (doc. #11 at p. 13), and alleges significant pain and discomfort when his condition is not properly managed. However, he has not alleged that ulcerative colitis substantially limits his major life activities; he claims only that his ability to attend regularly scheduled meals and recreation is curtailed when his symptoms are inflamed.
Even if Plaintiff were disabled under the ADA, his allegations do not establish that Defendants denied him services that were provided to other prisoners. Cf. Rashad v. Doughty, 4 Fed. Appx. 558, 560 (10th Cir. 2001) (citing McNally v. Prison Health Servs., 46 F.Supp.2d 49, 58 (D. Me. 1999) for the proposition that an HIV-positive prisoner may have stated an ADA claim by alleging he was denied services provided to other prisoners). Plaintiff eats and exercises regularly and receives the same allotment of toilet paper as all inmates; the special passes and additional tissue Plaintiff requested would have provided him greater access than what was available to the other prisoners. Plaintiff's allegations regarding his transfer to FCF, the implementation of certain policies at FCF, and the training of CDOC employees in ADA law similarly do not establish that Defendants prevented him from partaking in activities or services that were available to other inmates. As for Plaintiff's difficulty in procuring a gluten-free diet plus Ensure, "failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation." Rashad, 4 Fed. Appx. at 560 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)) (concluding that the ADA "would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners" and that the statute "does not create a remedy for medical malpractice"). While the delay in providing the gluten-free diet may constitute negligence, "negligence alone cannot support a Title II claim." Morris v. Kingston, 368 Fed. Appx. 686, 690 (7th Cir. 2010). Nor has Plaintiff alleged that Defendants acted with a discriminatory motive in denying him the accommodations he requested. See Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (instructing that discriminatory motive must be a "determining factor" in defendants' actions). Damages under the ADA are available only if a public official intentionally discriminates because of a disability. See Garcia v. S.U.N.Y. Health Services Center of Brooklyn, 280 F.3d 98, 111-12 (2d Cir. 2001).
Finally, Mr. Brooks cannot sue Defendants in their individual capacities for liability under the ADA. See Butler v. City of Prairie Village, Kansas, 172 F.3d 736, 744 (10th Cir. 1999) (noting that the reasons for precluding individual liability under Title VII apply equally to ADA). Cf. Sindram v. Merriwether, 507 F.Supp.2d 7, 11-12 (D.D.C. 2007) and cases cited therein. "[T]he proper defendant in a Title II claim is the public entity itself or an official acting in his or her official capacity." Hicks v. Keller, No. 11-cv-0422-WJM-KMT, 2012 WL 1414935, at *6 (D. Colo. April 24, 2012). Any ADA claims against Defendants in their individual capacities must be dismissed.
Plaintiff filed a Motion for Preliminary Injunction (doc. #49) on August 7, 2014. Plaintiff alleges therein that he continues to receive inadequate health care at FCF; specifically, Dr. Vahil prescribed Ensure for him, he subsequently received the drink for only two days, and he is unable to maintain a healthy weight consuming only the gluten-free diet. Plaintiff asks the court to order CDOC employees to supply him with "an acceptable gluten-free diet and ensure nutritional supplements."
A party seeking preliminary injunctive relief must satisfy four factors: a likelihood of success on the merits; a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant's favor; and that the injunction is in the public interest. RoDa Drilling Co., 552 F.3d at 1208. Plaintiff must show that these four factors "weigh heavily and compellingly in [his] favor," because he is seeking a mandatory injunction and the same relief he would be entitled to should he prevail on the merits. See Fundamentalist Church of Jesus Christ of Latter-Day Saints, 698 F.3d at 1301 (citation omitted).
Plaintiff's Motion for Preliminary Injunction implicates only Defendants Tessiere and Creany and non-party Sicotte. Plaintiff is not entitled to injunctive relief as to Defendant Tessiere because he has not shown a likelihood of success on the merits as to the constitutional claims brought against Tessiere. Defendant Creany did not move to dismiss the constitutional claims raised against him; however, he is no longer employed at FCF and no longer responsible for ordering the shakes. (See doc. #49 at p. 8). Furthermore, Plaintiff's allegations demonstrate that Ms. Sicotte is the individual responsible for withholding the Ensure shakes from Plaintiff despite Dr. Vahil's recommendation and Tessiere's authorization. While Ms. Sicotte's non-party status does not on its own preclude this court from issuing an injunction directed at her, "it nevertheless heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors ... but those considerations must also constitute ... `appropriate circumstances' ... to justify issuing an injunction against a non-party." Andrews v. Andrews, 160 Fed. Appx. 798, 799-800 (10th Cir. 2005) (quoting United States v. New York Telephone Co., 434 U.S. 159 (1977)).
I need not address whether appropriate circumstances exist because I find that Plaintiff has not made a compelling showing that he is likely to suffer irreparable harm in the absence of preliminary relief. "To constitute irreparable harm, an injury must be certain, great, actual and not theoretical." Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotations and citations omitted). Irreparable harm is defined as something greater than "merely serious or substantial harm," and the moving party "must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm." Id. Defendant Creany attests that in August 2013, Plaintiff weighed 158 pounds, trained with weights twice a week, played softball twice a week, and believed that his condition had improved significantly. (Doc. #51 at ¶ 34, Doc. #51-1 at ¶ 63). At this time, Plaintiff purportedly expressed to Defendant Creany his dislike for the gluten-free diet and asked that Ensure drinks be supplied to him. (See id. at ¶ 35, Doc. #51-1 at ¶¶ 64, 65). Creany explained that he did not think Ensure was medically necessary given Plaintiff's current state of health. Plaintiff responded that he would assume responsibility for managing his gluten intake and asked to receive a standard diet, which was thereafter provided.
For the foregoing reasons, Defendants' Motion to Dismiss in part (doc. #36) is GRANTED, and Plaintiff's Motion for a Preliminary Injunction (doc. #49) is DENIED. Plaintiff may file a second amended complaint within 30 days of the date of this Order and Opinion.
Social Security Administration, pro se.
*1 Claimant, Michael D. Wallace ("Wallace"), pursuant to
Wallace was 42 years old at the time of the hearing before the ALJ on May 22, 2009. (R. 29). Wallace had an eighth grade education and had no vocational training. (R. 30). Wallace had worked temporary jobs and for an egg packing company. (R. 30-31). He was fired from his last permanent job for missing work. (R. 31). Wallace had a history of drug abuse, including methamphetamine, but testified that he had been clean for a couple of years. (R. 32-33). Wallace testified that he was bipolar and schizophrenic, and when he began to work steadily at a job, he would start hearing voices and seeing things. (R. 31, 33).
Wallace testified that during a manic phase, he heard voices, didn't sleep for days, got angry, talked to people that weren't really there, and believed he was God or Jesus. (R. 33-34). He also described that during a manic phase, he had done odd things like taking all the light bulbs out of the house and dumping spices down the sink because he thought the devil was trapped inside him. (R. 36). Wallace testified that he would also self-mutilate or cut himself when manic. (R. 39).
Wallace also described hearing voices when he was in a depressed phase, particularly at night when it is quieter. (R. 34). Wallace testified that when he was depressed, he slept a lot, withdrew, and had thoughts of suicide. (R. 38). Wallace had tried to commit suicide by cutting himself with a chainsaw and injecting himself with battery acid. (R. 38). Wallace indicated he had been hospitalized seven or eight times for suicidal thoughts. (R. 38-39).
Wallace testified that he also had paranoid thoughts on a frequent basis, particularly when he would go out in public. (R. 39-40). He described always looking over his shoulder and being unable to concentrate at work due to his paranoia and checking to see if anyone was behind him. (R. 40). Regardless of whether he was in a manic or depressed phase, he described having difficulty with concentration and had "a million things racing through [his] mind at all times." (R. 40-41). This caused him to have difficulty with comprehension while watching TV or reading. (R. 41).
Wallace had sought mental health treatment, including medication and therapy, from Grand Lake Mental Health and from his physician, Dr. Mease. (R. 34-35). Wallace testified that the medication helped some, but that it did not help with the voices. (R. 36). He also indicated that side effects of the medication included drowsiness, involuntary tongue and jaw movement, and headaches. (R. 37, 43-44). Wallace testified that he had headaches three to five times per month. Id. These headaches would last a day or two and
*2 Wallace testified that on an average day, he spent most of his time in bed, and would get up at 5 p.m., eat, and go back to bed by 7 p.m. (R. 41-43). He testified that he would sleep anywhere from 14 to 18 hours a day. (R. 39, 43). He would try to mow the lawn or wash dishes, but could never finish. (R. 41, 44). Wallace testified that he left his home about once a week to visit family. (R. 44).
Wallace indicated that he did not really have any physical problems that would limit his ability to work. (R. 41). However, he did testify that he had a lung nodule that sometimes caused difficulty breathing and he had a "weak back from not working," but opined it would probably improve with exercise. (R. 41-42). Wallace estimated that he could stand for about an hour and a half before needing to rest, walk for 30-40 minutes at a time and could sit for about an hour at a time. (R. 42). He also estimated that he could routinely lift around 50 pounds. (R. 44).
Wallace's wife, Karen Wallace,
Wallace was hospitalized at Integris Grove General Hospital ("Integris") from May 16, 2005 to May 18, 2005 for nausea, vomiting, and abdominal pain. (R. 266-304). A
Wallace presented to Integris on September 2, 2006 and was treated for a
Wallace was treated off-and-on at Grand Lake Mental Health Center ("GLMHC") from approximately March 1999 through 2008. (R. 196-247). The record indicates Wallace received inpatient services at the GLMHC Stabilization Center from March 11, 1999 through March 15, 1999 and from February 2, 2003 through February 5, 2003 for
*3 The first GLMHC record available was dated November 1, 2006, and Shirley Chesnut, D.O. noted that Wallace was "stable" and was "doing well on current medications. No complaint of voices or visions. No complaint of depression or suicidal/homicidal ideation." (R. 204). Wallace's medications were listed as
On January 10, 2007, Wallace was seen again at Integris for complaints of coughing, vomiting, congestion, and urinating blood. (R. 346-54). Wallace was diagnosed with
On January 11, 2007, Wallace was seen at GLMHC by Theresa Page-Bohannan, M.S., LPC for an assessment and to establish a treatment plan. (R. 220-21). Wallace presented with a "clearly nervous" affect. (R. 221). Wallace's identified problems were excessive mood swings with anger and depression,
On February 28, 2007, Wallace presented to Integris and was treated for another
On June 20, 2007, Wallace presented to Integris with complaints of vomiting, diarrhea, and abdominal cramps. (R. 378-81). He was prescribed
On August 22, 2007, Wallace was evaluated at GLMHC by Patient Service Representative, Rikki Lancaster, B.S. (R. 205-09, 215). At that time, Wallace reported problems with sleeping, depression, anxiety, and
*4 On September 19, 2007, Wallace had a medication management appointment with Dr. Chesnut. (R. 200). She noted he had no complaints of voices, visions, depression, or homicidal or
On February 8, 2008, Wallace had a
Lancaster completed another assessment of Wallace on February 13, 2008. (R. 238-42, 247). She noted that Wallace's mood was agitated with a flat affect. (R. 247). Wallace reported that his medications were no longer working as well. Id. Wallace also reported problems with sleep disturbance, anger, nervousness, mood swings, aggression, delusions, and hallucinations. (R. 240-41).
Wallace also had an appointment on February 13, 2008 with Dr. Chesnut for medication management. (R. 226). Wallace reported increased depression and anxiety, but contrary to what Lancaster had noted, Wallace did not report voices or visions to Dr. Chesnut. Id. Dr. Chesnut increased the dosage of Wallace's medication. Id.
Wallace presented to Integris on February 28, 2008 with complaints of acute abdominal pain. (R. 402-16). A CT of the abdomen and a CT of the pelvis revealed recurrent acute sigmoid
On September 5, 2008, Wallace presented to Darrell Mease, M.D., for prescription refills and as a follow-up of his
*5 On September 28, 2008, Wallace reported to Dr. Mease that three days earlier, he had fainted and was unconscious for approximately two minutes. (R. 429-33). Wallace reported that this occurred suddenly and that he experience blurred vision and nausea prior to the occurrence. (R. 430). Dr. Mease noted that Wallace appeared tired and had a disheveled appearance. (R. 431). He also noted that Wallace appeared anxious, agitated, and paranoid, displayed psychomotor agitation and had pressured speech. Id.
On March 18, 2009, Wallace underwent a
Nine days after the administrative hearing, Wallace was admitted to Integris for observation from May 31, 2009 to June 2, 2009 after experiencing radiating chest pain. (R. 444-50). Tests did not reveal any significant
On July 8, 2009, Wallace was admitted to Integris for exacerbation of his
After the ALJ rendered his decision,
On April 25, 2010, Wallace was readmitted to Integris for a
On May 16, 2010, Wallace presented to Integris with complaints of abdominal pain and blood in his
*6 On July 21, 2010, Dr. Ohlstrom wrote a letter stating that as a result of Wallace's extensive surgery for
On September 24, 2010, Wallace underwent a
(R. 651). Wallace subsequently presented to Integris on October 1, 2010 with complaints of abdominal pain since the
Wallace did not have any agency consultative examinations. On November 11, 2007, non-examining agency consultant Sally Varghese, M.D., completed a Psychiatric Review Technique form and found insufficient evidence of a medically determinable impairment. (R. 182-94). Dr. Varghese noted that she was unable to assess the severity of Wallace's impairments because his medical source had not responded to a request for information and because Wallace had not shown up for two scheduled appointments for an agency mental status exam. (R. 194).
Non-examining agency consultant Burnard Pearce, Ph.D., completed a Psychiatric Review Technique form and Mental Residual Functional Capacity Assessment on June 10, 2008. (R. 248-65). Dr. Pearce marked that Wallace had an affective disorder, evidenced by both depressive and manic symptoms. (R. 248, 251). In the "Consultant's Notes" section, Dr. Pearce noted that Wallace had not shown up for another scheduled mental status exam and had not responded to a follow-up phone call or letter. (R. 260). Dr. Pearce briefly reviewed records from GLMHC, describing delusions, hallucinations, paranoia, and isolation. Id. Dr. Pearce also noted that Wallace had a history of substance abuse as well as non-compliance with treatment and medication. Id.
On the Mental Residual Functional Capacity Assessment form, Dr. Pearce found that Wallace was markedly limited in his ability to understand, remember, and carry out detailed instructions. (R. 262). Dr. Pearce also found that Wallace was markedly limited in his ability to interact appropriately with the general public. (R. 263). No other limitations were found. (R. 262-63). In summary, Dr. Pearce opined that Wallace could "perform simple tasks with routine supervision," "relate to supervisors and peers on a superficial work basis," "cannot relate to the general public," and "can adapt to a work situation." (R. 264).
*7 On June 21, 2007, Wallace filed applications for disability insurance benefits and for supplemental security income under Titles II and
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or
Judicial review of the Commissioner's determination is limited in scope by
Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The court's review is based on the record taken as a whole, and the court will "meticulously examine the record in order to determine if the evidence supporting the agency's decision is substantial, taking `into account whatever in the record fairly detracts from its weight .'" Id. (quoting
The ALJ found that Wallace met the insured status requirements through September 30, 2008. (R. 13). At Step One, the ALJ found that Wallace had not engaged in any substantial gainful activity since his alleged onset date of June 20, 2007. Id. At Step Two, the ALJ found that Wallace had a severe impairment of
*8 After reviewing the record, the ALJ determined Wallace had the RFC to perform a range of medium work, with the exception of his ability to "perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, cannot relate to the general public, and can adapt to a work situation." (R. 14). At Step Four, the ALJ found that Wallace was capable of performing his past relevant work as an egg packer. (R. 17). In the alternative, the ALJ found that Wallace was not disabled at Step Five and identified other jobs in the national economy that Wallace could perform. (R. 17-18). Therefore, the ALJ found that Wallace was not disabled from June 21, 2007 through the date of his decision. (R. 18).
Wallace asserts that the ALJ erred by failing to perform a proper determination at Steps Four and Five, and failing to perform a proper credibility determination. Regarding the issues raised by Wallace, the undersigned finds that the ALJ's decision is supported by substantial evidence and complies with legal requirements. Therefore, the ALJ's decision is affirmed.
Wallace's argument regarding Steps Four and Five is his objection to the hypothetical given to the vocational expert ("VE"). Instead of actually stating out loud what physical and mental limitations he wanted to include in the hypothetical, the ALJ merely referred to the Mental Residual Functional Capacity Assessment of Dr. Pearce and asked the VE to assume that Wallace had the RFC "to perform a full range of medium work, that he ha[d] functional or mental limitations as set out in [Dr. Pearce's assessment]." (R. 49, 262-64). In general, this Court disapproves of this method of propounding a hypothetical to the VE:
A complete question paired with a complete answer in the transcript is highly desirable . . . [The shortcut of using forms] too often leaves the reviewing court with difficulty in determining if the people sitting in the hearing room all were asking questions, giving testimony, and listening to testimony regarding the same hypothetical RFC.
As described earlier in this Opinion and Order, Dr. Pearce found that Wallace could "perform simple tasks with routine supervision," could "relate to supervisors and peers on a superficial work basis," could not "relate to the general public," and could "adapt to a work situation." (R. 264). The hypothetical, as it encompassed Dr. Pearce's assessment, is entirely consistent with the ALJ's ultimate RFC determination that Wallace had the RFC to perform medium work, with the exception of his ability to "perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, cannot relate to the general public, and can adapt to a work situation." (R. 14).
*9 Wallace argues that the ALJ failed to give specific exertional abilities in his hypothetical to the VE. This argument has no merit, particularly where there is no evidence of any exertional limitations and Wallace specifically claimed he had no physical impairments that prevented him from working. (R. 41-43). The exertional requirements of medium work are defined at
Credibility determinations by the trier of fact are given great deference.
The ALJ enjoys an institutional advantage in making [credibility determinations]. Not only does an ALJ see far more social security cases than do appellate judges, [the ALJ] is uniquely able to observe the demeanor and gauge the physical abilities of the claimant in a direct and unmediated fashion.
In his decision, the ALJ found that Wallace's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment."
*10 The ALJ discussed Wallace's medical records, including the fact that he missed numerous appointments, and was evaluated by his treating psychiatrist as "stable" at the appointments he did attend. (R. 16). The ALJ's reliance upon the inconsistency between this medical evidence and Wallace's complaints is a specific reason for finding Wallace less than credible. (R. 17). See
In addition to the legitimate reason of citing provisions of objective medical evidence that contrasted with Wallace's claims of disabling mental symptoms, the ALJ specifically examined the credibility factors set forth by SSR 96-7p, including activities of daily living, factors that precipitated and aggravated symptoms, medication taken to alleviate symptoms, and treatment obtained for relief, as well as his history of substance abuse. (R. 16-17).
Wallace lists several pieces of evidence that the ALJ "ignored." A claimant made a similar argument in a Tenth Circuit case, listing "certain pieces of favorable evidence."
Wallace also criticizes the ALJ's credibility determination of his wife's testimony. The ALJ found that her "testimony [was] diminished substantially because of the spousal relationship and a desire to support the claimant. The claimant's lack of support for his mental status allegations also affects his wife's credibility." (R. 17). This credibility determination is also entitled to deference when supported by substantial evidence. See
*11 Wallace's multiple arguments regarding the ALJ's credibility assessment constitute "an invitation to this court to engage in an impermissible reweighing of the evidence and to substitute our judgment for that of the Commissioner," and the undersigned declines that invitation.
The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.
The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. The decision is AFFIRMED.
*840 Sylvester Davis, # 96327, Crowley County Correctional Facility, Olney Springs, CO, pro se.
Edward T. Farry, Farry and Rector, L.L.P., Colorado Springs, CO, Josh Adam Marks, Melanie Bailey Lewis, Hall & Evans, Denver, CO, for Defendants-Appellees. Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.
O'BRIEN, Circuit Judge.
**1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument. Sylvester Davis, a state prisoner, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint
Davis was incarcerated at the Colorado Department of Corrections' Arkansas Valley Correctional Facility (AVCF) and later at its Crowley County Correctional Facility (Crowley). While incarcerated at AVCF, he ran into disciplinary problems. He alleges as follows. On August 16, 2000, he was typing a paper in the General Library. Officer J. Halpin requested to see the paper. Davis did not comply. Instead, he removed the paper from the typewriter and placed it in a pocket folder with other papers. Halpin confiscated the pocket folder and also a manila envelope.
**2 In February 2000, Davis was transferred to Crowley. According to his complaint, the medical staff at Crowley discontinued pain medication previously prescribed for him free of charge at AVCF.
In his complaint, Davis alleges Hartley and Garcia violated his Fourteenth Amendment right to due process by confiscating and destroying his legal materials and by transferring him to Crowley in retaliation for challenging the confiscation. He also claims they violated the First Amendment by interfering with his right of access to the courts.
We review de novo the district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).
"[A]ll well-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party.
Id. (quotations and citation omitted). Although we construe pro se pleadings liberally, Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.2003), "[we] will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997). Nor are we "bound by conclusory allegations, unwarranted inferences, or legal conclusions." Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994).
As to Davis' claims against Hartley and Garcia, Davis has failed altogether to allege either of them was involved in the confiscation of his legal materials. Therefore, the confiscation portion of his claim fails. As to the destruction portion of his claim, he only alleges in conclusory fashion that either Hartley or Garcia was involved in the destruction of his materials. This is insufficient. The mere fact each may have signed a grievance response indicating the confiscated materials were subject to disposal as contraband hardly suffices to establish that either participated in or authorized the destruction of the materials. For this reason, the destruction portion of his claim fails. Even if Davis adequately alleged that Hartley and Garcia intentionally destroyed or authorized the destruction of his legal materials pursuant to prison regulation (see n. 4), an act which concededly requires a pre-deprivation hearing in order to comply with due process, Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir.1989), we conclude the pre-deprivation due process accorded to Davis was sufficient. He was informed through the grievance process he could preserve the confiscated materials by sending them out of the facility; otherwise, they would be destroyed. In failing to arrange to send the materials out of the facility, he acceded to their destruction. Furthermore, he was informed he must appeal the underlying disciplinary action in order to contest the confiscation. The record is devoid of any evidence he pursued an appeal.
**3 Davis' claim that Hartley and Garcia retaliated against him by transferring him to Crowley is, like the confiscation claim, devoid of specific factual allegations connecting either of them to his transfer. Consequently, Davis' retaliation claim fails as well. Finally, while Davis enjoys the fundamental right of access to the courts, Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), to state a claim for deprivation of this right he must demonstrate an actual injury that "hindered his efforts to pursue a legal claim." Id. at 351. He failed to *843 demonstrate to the district court how the destruction of his legal materials hindered him in the petitioning for post-conviction relief.
Turning to Davis' claim against Hargett, while it is true that "[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment[,]" Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation omitted), it is also true that "a supervisor is not liable under § 1983 for the actions of a subordinate unless an affirmative link exists between the constitutional deprivation and either the supervisor's personal participation or his failure to supervise. . . ." Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996) (quotation omitted). Davis has failed to demonstrate this link. Copying Hargett with correspondence outlining his complaints about medical care, without more, does not sufficiently implicate the warden under § 1983.
We conclude Davis' appeal is frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and DISMISS it.
Michael Doyle, Sterling, CO, pro se.
MILLER, Judge.
Plaintiff has been incarcerated at the Colorado Territorial Correctional Facility ("CTCF") at all times relevant to this action. This action was filed pursuant to
Pursuant to
First, Magistrate Judge Tafoya recommends that the claims against Defendants Abbott and Foshee be dismissed because Plaintiff has failed to allege personal participation by these defendants. I agree. "[P]ersonal participation is an essential allegation in a
In this case, the complaint's only mention of Defendants Abbott and Foshee is in the description of the parties, which alleges "Associate Warden Foshee denied all my Grievances as frivolous and petty on all the issues in this Document" and Warden Abbott "was made aware of what staff was doing and ignored it." (Compl. At 3.) These allegations are insufficient to establish an "sufficient causal connection" between the defendants and the alleged constitutional violations as they are no more than conclusory allegations, demonstrate nothing more than negligence at most, and do not demonstrate that the defendants acted with knowledge that a constitutional violation would occur. As Plaintiff's objections do not remedy this defect, but merely argue that Defendants Abbott and Foshee should be vicariously liable, all claims against Defendants Abbott and Foshee, if any, shall be dismissed.
Defendants argue that all claims relating to any COPD cases should be dismissed under
Defendants next argue that Plaintiff's claims regarding being placed on RP status (Claim One) and being placed in segregation (part of Claim Two) must be dismissed because Plaintiff has no liberty interest in remaining in the general population or in retaining any privileges during his incarceration. "[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement."
In this case, Plaintiff's response to the motion to dismiss alleges that he suffered "atypical and significant hardship" during his RP status and administrative segregation including (1) having his TV, lamp, fan, glasses, and headphones taken away; (2) being put in a punishment cell for fourteen and a half months; (3) being put in a punishment cell with "AIDS inmates" when he is not HIV-positive; (4) being put in a punishment cell with younger "want to be gang bangers"; (5) not being able to talk to other inmates; and (6) "being the Case Managers [sic] victim of Deliberate Indifference I became a target from other staff." (Docket No. 28 at 9-10.) Defendants argue that these allegations are insufficient to establish a liberty interest. I agree with Defendant.
First, with respect to administrative segregation, an inmate does not have an inherent liberty interest in remaining in the general population and avoiding being placed in administrative segregation. See
Defendants also argue that Plaintiff's claims regarding Cella and Reyes actions in his cell should be dismissed. First, they argue that if Plaintiff's claim is based on negligence,
Finally, I note that the remainder of Plaintiff's claims, if any, should be dismissed for failure to comply with
In this case, Magistrate Judge Tafoya determined that because she recommended that all of Plaintiff's claims be dismissed, Plaintiff was unable to meet the first factor for a preliminary injunction—substantial likelihood of success on the merits. Although I conclude that dismissal is warranted on different grounds than those upon which Magistrate Judge Tafoya based her recommendation, the analysis of Plaintiff's showing of the likelihood of success remains the same. I further note that Plaintiff has not demonstrated that the other three requirements "tip strongly in his favor" such that the "success on the merits" prong showing is reduced. Id. Therefore, I agree with Magistrate Judge Tafoya that denial of Plaintiff's motions for preliminary injunction is appropriate.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Tafoya issued August 21, 2008 (Docket No. 80) is accepted as modified.
2. Defendants' Motion to Dismiss (Docket No. 24) is granted.
3. Plaintiff's Motions for Preliminary Injunction (Docket Nos. 31, 61, 70, 75) are denied.
4. This case is dismissed with prejudice.
Prisoner brought action against two corrections officials, alleging that the Oklahoma Department of Corrections failed to provide adequate treatment of his post-traumatic stress disorder. The United States District Court dismissed complaint, and prisoner appealed. The Court of Appeals,
Affirmed.
*560 Before
**1 Bilal Rashad, a prisoner in the custody of the Oklahoma Department of Corrections, filed this pro se action against two corrections officials, alleging that the Department failed to provide adequate treatment of his
In a thorough and well-reasoned report and recommendation, the magistrate judge concluded that Mr. Rashad's complaint failed to state a claim upon which relief could be granted. He further recommended that the dismissal count as a "prior occasion" under
With regard to Mr. Rashad's ADA claim, it is clear that prisons are "public entities" covered by Title II of the ADA. See
Here, as the magistrate judge noted, Mr. Rashad's complaint alleges inadequate treatment of his
As to Mr. Rashad's second claim, the magistrate judge properly noted that *561 the Eighth Amendment protects prisoners from officials' deliberate indifference to serious medical needs. See
**2 "`A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.'"
We agree with the magistrate judge's assessment of Mr. Rashad's Eighth Amendment claim. Although he alleges that prison officials refused to grant his request for treatment at a Veterans Administration facility, Mr. Rashad acknowledges that mental health professionals are available to provide him with treatment within the Department of Corrections. The fact that Mr. Rashad has not been provided with treatment at the facility of his choice is insufficient to state an Eighth Amendment claim.
In his appellate brief, Mr. Rashad contends that the magistrate judge and the district court erred in failing to allow him to amend his complaint and to conduct additional discovery. Although we construe pro se pleadings liberally, see
Accordingly, we AFFIRM the district court's dismissal of Mr. Rashad's complaint. The district court's dismissal counts as a "prior occasion" for the counting purposes of
Morris sued for damages and injunctive relief under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act,
The district court granted summary judgment to the defendants. The court concluded that missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the Eighth Amendment. Moreover, the court concluded that Morris had not established that the defendants were deliberately indifferent to his needs for food and medicine, and that the prison officials were at most negligent. As for the ADA claims, the court concluded that his request for injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an Eighth Amendment claim doomed his request for damages, which are available under Title II only for constitutional violations.
The Eighth Amendment requires prison officials to provide adequate food, clothing, shelter, and medical care to prisoners.
Morris argues that his weight loss while in segregation belies the district court's conclusion that he suffered no serious harm. But as the district court noted, he was examined five times by medical staff during his 24-day stay in segregation, and the staff noted no serious medical problem related to weight loss or otherwise caused by missing food or medicine. Whether or not the 17-day delay in placing the placard outside his cell suggests a failure to provide adequate care, Morris cannot establish a constitutional violation because he has not shown that missing his meals or medicine caused serious harm or lasting detriment. See
As for his ADA claims, although Morris correctly notes that Title II applies to prisoners, see
But the district court did not note that in
But Title II only provides for damages if a public official intentionally discriminates because of disability. See
Edward Lee Hicks, Canon City, CO, pro se.
James Lawrence Burgess,
The facts relevant to a resolution of these Motions to Dismiss are detailed in the Recommendations. Briefly, Plaintiff is a currently incarcerated pro se prisoner with the Colorado Department of Corrections ("CDOC"). (Am. Compl. (ECF No. 15.)) Defendants are various employees of the CDOC. (Id.) The instant lawsuit arises from Plaintiff's claims that Defendants lost and failed to replace his hearing-aid.
Plaintiff's operative Complaint for purposes of resolving the Motions to Dismiss was filed on June 3, 2011.
On August 29, 2011, the CDOC Defendants filed their Motion to Dismiss requesting that the Court dismiss all claims pursuant to
On the January 23, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss be granted in part and denied in part, as described below in the analysis section. (ECF No. 61.) On February 6, 2012, the CDOC Defendants filed a timely Objection to the January 23, 2012 Recommendation (CDOC Obj. (ECF No. 64)), and Plaintiff filed his Objection on February 27, 2012 (Pl. Obj. (ECF No. 77)).
On January 30, 2012, the CDOC Defendants filed a Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot, arguing that Plaintiff's recent receipt of a hearing-aid mooted his claims for injunctive relief. (ECF No. 62.) On February 27, 2012, Plaintiff filed his Response to the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief. (ECF No. 76).
On the March 7, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot be granted. (ECF No. 79.) Neither party filed an objection to the March 7, 2012 Recommendation.
When a Magistrate Judge issues a recommendation on a dispositive matter,
A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction."
The purpose of a motion to dismiss pursuant to
Further, in considering the Magistrate Judge's Recommendations in the instant case, the Court is also mindful of Plaintiff's pro se status, and accordingly, reads his pleadings and filings liberally. See
The Magistrate Judge's January 23, 2012 Recommendation contains numerous findings and conclusions. (Jan 23, 2012 Rec. at 31-32.) Neither party objects to the majority of these findings. However, the CDOC Defendants object to the Magistrate Judge's recommendation that their Motion to Dismiss Plaintiff's
The Magistrate Judge recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's
Plaintiff seeks to establish that Defendant Nelson was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. (Am. Compl. at 20-23.) In order to state an Eighth Amendment cruel and unusual punishment claim, "`a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'"
Reading Plaintiff's Amended Complaint in the light most favorable to him, as the Court must on a Motion to Dismiss, Plaintiff has sufficiently alleged that Defendant Nelson denied Plaintiff a replacement hearing-aid with deliberate indifference to his serious medical need. (Am. Compl. at 20-23.) Plaintiff alleges that despite learning of the circumstances surrounding the loss of his hearing-aid, including that Plaintiff's hearing-aid was provided by the CDOC and that he was not responsible for its loss, Defendant Nelson nevertheless informed Plaintiff that his request for a replacement hearing-aid was denied. (Id., Exs. 4A, 14, 15.) Moreover, Defendant Nelson informed Plaintiff that he would be responsible for replacing the hearing-aid, at a cost of between $4,000 and $5,000. (Id. at 14.) Plaintiff's allegations of intentional deprivation of his hearing-aid, a necessary medical devise, sufficiently state a claim that Defendant Nelson was deliberately indifferent to Plaintiff's serious medical needs. See
The Court finds that Defendant Nelson is not entitled to qualified immunity. "[T]here is little doubt that deliberate indifference to an inmate's serious medical need is a clearly established constitutional right."
For the reasons stated above, the CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity is denied.
Plaintiff objects to the Magistrate Judge's recommendation that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities be dismissed. (Pl. Obj. at 1-8.)
Plaintiff also fails to state a claim under the ADA against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities. Plaintiff's claim against these Defendants arises under Title II of the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
Therefore, all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities are dismissed with prejudice.
Neither party has objected to the following Magistrate Judge's recommendations:
(1) the dismissal of Plaintiff's
(3) the dismissal of Plaintiff's ADA claim against the Defendant Nelson in her individual capacity;
(4) denying dismissal of Plaintiff's ADA claims against the CDOC Defendants in their official capacities;
(5) denying dismissal of Plaintiff's request for punitive damages under § 1983; and
(6) denying dismissal of Plaintiff's request for compensatory damages for emotional and mental trauma.
(Jan. 23, 2012 Rec. at 31-32.)
The Court has reviewed these rulings of the Magistrate Judge and finds no clear error in these determinations. See
The Magistrate Judge's March 7, 2012 Recommendation recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot (ECF No. 62) be granted, and that Plaintiff's claims for injunctive relief be dismissed, because Plaintiff finally received a replacement prison-issued hearing-aid on December 7, 2011. (Mar. 7, 2012 Rec. at 2-4.) Neither party has objected to this recommendation.
The Court has reviewed the March 7, 2012 Recommendation and finds no clear error in its determination. See
For the reasons set forth above, the Court ORDERS as follows:
1. Defendants' and Plaintiff's objections to the Magistrate Judge's January 23, 2012 Recommendation (ECF No. 61) are OVERRULED and the Recommendation is ADOPTED in its entirety;
2. The Magistrate Judge's March 7, 2012 Recommendation (ECF No. 79) is ADOPTED in its entirety;
3. The CDOC Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 46) is GRANTED IN PART and DENIED IN PART;
4. The Jefferson County Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 26) is DENIED AS MOOT;
5. Plaintiff's
6. Plaintiff's
7. Plaintiff's
8. Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their individual capacities are DISMISSED WITH PREJUDICE;
10. The CDOC Defendants' Motion to Dismiss Plaintiff's
11. The CDOC Defendants' Motion to Dismiss Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities is DENIED;
12. The CDOC Defendants' Motion to Dismiss Plaintiff's request for punitive damages under
13. The CDOC Defendants' Motion to Dismiss Plaintiff's request for compensatory damages for emotional and mental trauma is DENIED.
Plaintiffs brought this pro se civil rights action alleging constitutional violations in connection with a series of state child custody proceedings. The factual details and constitutional underpinnings of the claims are not clear from plaintiffs' pleadings or briefs. Apparently, some of the state proceedings are not yet complete, and plaintiffs sought to suspend those proceedings and to restrict investigation/enforcement of parental code violations more generally by moving for an injunction against the state governor and human services director, who had not been named in the suit. The district court denied the motion on alternative grounds, holding injunctive relief (1) barred by Eleventh Amendment immunity, (2) unavailable against non-parties, and (3) unsubstantiated on the merits in any event. We take jurisdiction under
In order to justify injunctive relief, the movants must establish that:
(1) [they] will suffer irreparable injury unless the injunction issues; (2) the threatened injury . . . outweighs whatever damages the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits.
