N. REID NEUREITER, Magistrate Judge.
This case is before the Court pursuant to an Order (Dkt. #51) issued by Judge William J. Martinez referring Defendants Rick Raemisch, Sean Foster, Theordor [sic] Lawrence, Denise Asher, Captain Bosley, Sgt. Aragon, Major Bucholtz, and Deborah Borrego (collectively "Defendants") Motion to Dismiss Amended Complaint. (Dkt. #49.) The Court has carefully considered the motion and Plaintiff Daniel James Vigil's response. (Dkt. #60.) On February 13, 2019, the Court heard argument on the subject motion. (Dkt. #63.) The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and makes the following recommendation.
Mr. Vigil, proceeding pro se, initiated this case on June 15, 2018. (Dkt. #1.) On June 20, 2018, Judge Lewis T. Babcock dismissed his claims against Defendants Rick Raemisch and Sean Foster, and the remaining claims were drawn to Magistrate Judge Michael J. Watanabe. (Dkt. #5.) Upon Judge Watanabe's retirement, the case was reassigned to me on August 15, 2018. (Dkt. #22.) Soon thereafter, Defendants moved to dismiss Mr. Vigil's Complaint and asked the Court to stay discovery pending a ruling on the motion. (Dkt. ##28 & 30.) The Court granted the motion to stay. (Dkt. #36.) In response to Defendants' motion to dismiss, on September 28, 2018, Mr. Vigil filed an Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B). (Dkt. #45.) On October 19, 2019, Defendants filed the subject motion to dismiss. (Dkt. #49.)
The nature of Mr. Vigil's claims requires a relatively detailed recitation of the chronology of events described in his Amended Complaint. Construing Mr. Vigil's allegations liberally and assuming all well-pled allegations as true, he asserts as follows.
Mr. Vigil asserts three claims for relief pursuant to 42 U.S.C. § 1983. Claim One is an Eighth Amendment claim for deliberate indifference to serious medical need against Defendants Lawrence, Asher, Jane and John Doe, and Borrego. Mr. Vigil identifies Mr. Lawrence as the physician assistant at AVCF who was in charge of treating his injuries. He alleges that Mr. Lawrence failed to undertake the proper procedures to ensure that Mr. Vigil's medical treatment was proficient, timely, and professional. Ms. Asher is sued as the head the AVCF nursing department. Mr. Vigil claims she was responsible for scheduling medical appointments. Ms. Borrego is a nurse practitioner who treated Mr. Vigil at the BVCF. The Doe Defendants are apparently individuals in the CDOC's "Insurance Department," that refused to pay for his surgery.
Claim Two is an Eighth Amendment claim for deliberate indifference to the damaged condition of the sidewalk against Defendants Bucholtz, Bosley, and Aragon. These Defendants are allegedly responsible for maintenance at the AVCF.
Finally, Claim Three is another Eighth Amendment deliberate indifference claim against Defendant Borrego. This claim is essentially duplicative of Claim One as it pertains to Ms. Borrego, and the Court will discuss the two claims together.
Mr. Vigil is proceeding pro se. The Court, therefore, "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, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall, 935 F.2d at1198. "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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Moreover, "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (citation omitted). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (citation omitted).
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). To resolve a claim of qualified immunity, the Court must consider two elements: (1) whether the plaintiff has alleged a constitutional violation, and (2) whether the violated right was "clearly established" at the time of the violation. Id. at 230-31. "The judges of the district courts . . . [may] exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236. Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the inquiry. Id. at 232. When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
Qualified immunity is immunity from suit, rather than a mere defense to liability. Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). If a court finds that a defendant is subject to qualified immunity, the court may dismiss with or without prejudice. Breidenbach v. Bolish, 126 F.3d 1288, 1294 (10th Cir. 1997); Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1342 (10th Cir. 2000).
Defendants move to dismiss Mr. Vigil's lawsuit on several grounds. They argue (1) they are immune from liability for claims for damages against them in their official capacities; (2) Defendants Raemisch and Foster were previously dismissed for lack of personal participation and Mr. Vigil's Amended Complaint makes no new allegations pertaining to these Defendants; (3) Mr. Vigil fails to state any claim under the Eighth Amendment; and (4) they are entitled to qualified immunity.
As an initial matter, to the extent that Mr. Vigil asserts claims for damages against Defendants in their official capacities, such claims are barred by Eleventh Amendment immunity. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
As noted above, Judge Babcock dismissed Mr. Vigil's claims against Defendants Rick Raemisch, the CDOC's Executive Director, and Sean Foster, the AVCF Warden. Judge Babcock reasoned as follows:
(Dkt. #5 at 3.)
Mr. Vigil offers no new or additional facts that support the reintroduction of these Defendants in this lawsuit. Thus, Judge Babcock's analysis applies with equal force to Mr. Vigil's Amended Complaint, and the Court recommends that the claims against these Defendants be dismissed.
Mr. Vigil alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated by (1) the conditions of his confinement at AVCF considering the danger posed by the damaged sidewalk, and (2) Defendants' deliberate indifference to his serious medical needs. The Court will address each issue in turn.
"To prevail on a `conditions of confinement' claim under the Eighth Amendment, an inmate must establish that (1) the condition complained of is `sufficiently serious' to implicate constitutional protection, and (2) prison officials acted with `deliberate indifference' to inmate health or safety." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). As to the first requirement, an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. This is an objective standard. Lucero v. Mesa Cty. Sheriff's Dep't, 297 F. App'x. 764, 766 (10th Cir. 2008) (citing Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001)).
Mr. Vigil cannot satisfy the first element of a conditions of confinement claim. "The Eighth Amendment does not sweep so broadly as to include possible latent harms to health." Clemmons v. Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992). Rather, "the `core areas' of any Eighth Amendment claim are shelter, sanitation, food, personal safety, medical care, and adequate clothing." Id. Pursuant to Tenth Circuit authority, for Mr. Vigil to prevail on this type of conditions of confinement claim, he must allege "special or unique circumstances" that requires the Court "to depart from the general rule barring Eighth Amendment liability in prison slip and fall cases." Reynolds v. Powell, 370 F.3d 1028, 1031-32 (10th Cir. 2004). See also LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (noting that "slippery prison floors . . . do not state even an arguable claim for cruel and unusual punishment") (quotation omitted). Mr. Vigil's only allegation is that the sidewalk in question was "damaged" and therefore dangerous to him and other inmates. Objectively, this allegation is insufficient to establish the type of "special or unique circumstances" that would implicate an Eighth Amendment violation. See Ely v. Bowers, No. 4:07CV961 CEJ, 2007 WL 4205802, at *1 (E.D. Mo. Nov. 26, 2007) (finding that a "broken and unlevel" section of sidewalk does not constitute a substantial risk of harm to prisoner).
Accordingly, Defendants Bucholtz, Bosley, and Aragon are entitled to qualified immunity, and the Court recommends that Mr. Vigil's claim against them be dismissed.
Next, Defendants argue that Mr. Vigils alleges, at most, that Defendants Lawrence, Asher, the Doe Defendants, and Borrego were negligent in their medical treatment, which is insufficient as a matter of law to state a claim for deliberate indifference to serious medical needs. The Court agrees as to all Defendants but Mr. Lawrence.
Judge Martinez recently set forth the standard for an Eighth Amendment claim for deliberate indifference to a prisoner's serious medical needs:
Sardakowski v. Lish, No. 17-cv-2542-WJM-KMT, 2018 WL 4509526, at *3 (D. Colo. Sept. 20, 2018).
Defendants do not challenge that Mr. Vigil's broken arm and injured hand were sufficiently serious medical conditions for Eighth Amendment purposes, and the Court will assume so for the purposes of this motion. However, Defendants claim that Mr. Vigil does not allege that he was denied treatment, but only that the treatment he did receive was untimely and ineffective. Such allegations would be insufficient because "even if a prison official's actions fell below a reasonable standard of care, `the negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.'" Sardakowski, 2018 WL 4509526, at *4 (quoting Sherman v. Klenke, 653 F. App'x 580, 586 (10th Cir. 2016)).
It is clear to the Court that Mr. Vigil's claims against Ms. Asher, the Doe Defendants, and Ms. Borrego are inadequate, on their face, to state an Eighth Amendment claim. First, Mr. Vigil does not allege that Ms. Asher had any subjective knowledge of his condition, and her position as a supervisor of the AVCF nursing staff alone does not give rise to liability. See Iqbal, 556 U.S. at 676. Similarly, Mr. Vigil's allegations against the Doe Defendants (i.e., the "Medical Contractors"/"Insurance Department" that refused to pay for his surgery) are threadbare and not supported by factual averments.
Mr. Vigil's allegations against Mr. Lawrence, however, require closer attention. Accepting Mr. Vigil's allegations as true, Mr. Lawrence knew on December 6, 2016 that Mr. Vigil had a broken arm. He knew at that time that Mr. Vigil should see an orthopedic specialist. While Mr. Lawrence cannot be blamed for the flat tire that caused Mr. Vigil to miss the December 20, 2016 appointment, his failure to respond to Mr. Vigil's subsequent requests for medical attention or promptly reschedule the orthopedic examination exposes him to potential Eighth Amendment liability. As Mr. Vigil notes, it ended up taking over three months from the date of his injury for Mr. Vigil to see a specialist. In the meantime, he was "treated" with a sling and Tylenol, and after he missed the December 20, 2016 appointment, Mr. Vigil claims he was not even given Tylenol.
The Court recognizes that delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). Nevertheless, the Court finds that, construing his allegations liberally and in the most favorable light, Mr. Vigil has cleared this hurdle. When at last he was able to see the orthopedic specialist,
As of May 26, 2017, Mr. Vigil's fracture still had not healed. Mr. Vigil plausibly alleges that, because of these significant delays, his broken arm required major surgical intervention that could have been avoided had been provided adequate treatment in the first place. While Mr. Vigil did not end up with a prosthetic elbow, doctors did have to harvest bone from his hip to screw into his right arm. Whether this would have happened had Mr. Lawrence not delayed and/or denied him treatment is a question of fact that cannot be decided at this early stage. Construing Mr. Vigil's allegations liberally, I must assume it to be true. Accordingly, the Court finds that Mr. Vigil's Amended Complaint states a claim for deliberate indifference to serious medical needs against Mr. Lawrence.
Finding so, the Court must now turn to whether Mr. Lawrence is nevertheless entitled to qualified immunity. This inquiry turns on whether Mr. Lawrence's conduct violated clearly established law. The Court finds it did.
It cannot be questioned that the government has an obligation to provide medical care for the incarcerated: "[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, "pain and suffering which no one suggests would serve any penological purpose" is "inconsistent with contemporary standards of decency" and therefore violative of the Eighth Amendment. Id. The Tenth Circuit has likewise recognized that a "prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment." Sealock, 218 F.3d at 1209 (10th Cir. 2000) (citing Estelle, 429 U.S. at 102). In Sealock, the court held that a medical professional who "knows that his role in a particular medical emergency is solely to serve as a gatekeeper for other personnel capable of treating the condition" may be liable under § 1983 "if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference." Id. at 1211. Thus, "the Tenth Circuit recognizes two types of conduct which may constitute deliberate indifference in a prison medical case: (1) a medical professional failing to treat a serious medical condition properly; and (2) a prison official preventing an inmate from receiving medical treatment or denying access to medical personnel capable of evaluating the inmate's condition." Jenkins v. Utah Cty. Jail, No. 2:11-cv-00761, 2015 WL 164194, at *12 (D. Utah Jan. 13, 2015) (citing Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) and Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005)).
Here, Mr. Lawrence's conduct arguably falls under both categories. He was a medical professional who knew of and yet failed to treat Mr. Vigil's broken arm, which constitutes a significant injury. See, e.g., Clemmons, 956 F.2d at 1527 (citing cases holding that broken bones are sufficiently serious for purpose of Eighth Amendment). He could also be said to have played a gatekeeper role in that he believed that Mr. Vigil should see an orthopedic specialist, and was on notice that delaying this appointment for seven weeks may rise to the level of deliberate indifference. Accordingly, "Tenth Circuit case law involving deliberate indifference and medical treatment in this context is not so general as to deprive reasonable employees of notice of their constitutional obligation." Jenkins, 2015 WL 164194, at *12. The Court finds that Mr. Vigil has satisfied his burden of demonstrating a clearly established right in the context of this case, and recommends that his claim against Mr. Lawrence be allowed to proceed.
It is hereby
(Dkt. #45 at 12) (extraneous commas omitted.)
