STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before me on Plaintiff David J. Atencio's
Plaintiff is a pro se prisoner litigant. He filed his original complaint [Doc. 1] and amendment [Doc. 2] pursuant to § 1983 on November 4, 2013. Plaintiff filed his Amended Complaint [Doc. 8] on December 18, 2013. The Amended Complaint is the operative complaint. Plaintiff's allegations arise from an eye injury he suffered on August 8, 2013, while incarcerated at Southern New Mexico Correctional Facility ("SNMCF"). Plaintiff alleges as follows:
Plaintiff was engaged in a work assignment at the SNMCF maintenance shop. [Doc. 8] at 4, 12. The work assignment involved grinding metal. Id. In weeks prior to his injury, Plaintiff had notified the maintenance supervisors, Defendants James Kaczmarek, Santiago Lerma, and Chuck Evans, that "that they were not providing inmates the right eye protection." Id. at 4. However, Defendants failed to take any action on Plaintiff's warning. Id.
On August 8, 2013, Plaintiff went to the Maintenance Department tool room and obtained a pair of safety glasses in preparation of the work assignment. Id. at 12. The safety glasses were those "always available and required to be worn when using the grinding machine." Id. Plaintiff put on the safety glasses and started working. Id.
While Plaintiff was grinding metal, "some metal flew up and went under the glasses and into [his] eye." [Doc. 8] at 12. Plaintiff alleges:
Id. at 13.
Plaintiff alleges that his eye later "felt irritated and felt like something was in it." Id. Plaintiff "went to [the] medication window" to speak with the nurse on duty, Defendant Kelli Marable. Id. at 14. Defendant Marable advised Plaintiff to speak with "Ms. Kathleen Hodges in the morning." Id.
Plaintiff returned to his living unit; he alleges that his "eye was red and irritated" at that time. Id. Sgt. Perez, an SNMCF officer, examined Plaintiff's eye and "sent him back to medical" with instructions to Defendant Marable to "flush out [Plaintiff's] eye." Id. Defendant Marable flushed out Plaintiff's eye, but "nothing appeared to come out." Id. Defendant Marable instructed Plaintiff to "return to medical in the [morning] sick call." Id. Plaintiff returned to his living unit. Id. at 15.
About an hour later, Plaintiff again went to Sgt. Perez. Sgt. Perez reexamined Plaintiff's eye and, believing something might be in it, called the warden. Id. The warden instructed the SNMCF officers to contact the on-call doctor. Id. At the instruction of the on-call doctor, Plaintiff was taken to the emergency room that evening. Id. There, metal fragments were removed from Plaintiff's eye. Id. Plaintiff alleges that the injury has caused him continuing head pains and double vision. Id. at 7.
Plaintiff now claims that Defendants Kaczmarek, Lerma, Barela, and Evans (collectively, the "SNMCF Defendants"), as well as Defendant Marable, violated his constitutional rights. [Doc. 8].
A court may dismiss a complaint for failure to state a claim upon which relief can be granted.
The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," because "courts are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (internal quotations omitted). "[A] plaintiff must `nudge [his] claims across the line from conceivable to plausible` in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (internal citation omitted).
Stated differently, the Rule 12(b)(6) analysis requires two inquiries. First, courts identify "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations that are legal conclusions, bare assertions, or merely conclusory. Iqbal, 556 U.S. at 678. Second, courts consider the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 680-81. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. See id. at 682-83. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient. Id. at 678.
At this stage of litigation the Court presumes that all Plaintiff's factual allegations—but not legal conclusions—are true. See Iqbal, 556 U.S. at 884. Moreover, the Court liberally construes Plaintiff's filings because he is appearing pro se. Hall, 935 F.2d at 1110.
In his Amended Complaint, Plaintiff claims that the SNMCF Defendants violated his constitutional rights by (1) providing improper safety equipment in the maintenance shop, which resulted in his injury, and (2) acting with deliberate indifference to his serious medical need. [Doc. 8] at 5, 7 ("Count I" and "Count III"). Plaintiff also claims that Defendant Marable violated the Eighth Amendment by delaying his medical treatment. Id. at 6 ("Count II"). I find that Plaintiff's Amended Complaint fails to state a claim for Eighth Amendment or other constitutional violations and should be dismissed, as discussed herein.
Plaintiff claims that his eye injury resulted from the SNMCF Defendants' failure to provide appropriate eye and face protection. [Doc. 8] at 4, 7. Plaintiff alleges that he notified the SNMCF Defendants of the maintenance shop's inadequate eye and face protection, but that they took no action. Id. at 4. Moreover, he alleges, the SNMCF Defendants failed to follow federal and state equipment and safety regulations. Id. at 7. Essentially, Plaintiff contends that his injury would not have happened had the SNMCF Defendants had provided adequate safety equipment. I find that Plaintiff's allegations fail to state a cognizable claim under § 1983.
"Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Major v. Benton, 647 F.2d 110, 113 (10th Cir. 1981) (citing Baker v. McCollan, 443 U.S. 137, 146 (1979)) (finding, in an action arising from an inmate's death in a sewer ditch cave-in, that the alleged negligent action of prison officials in failing to formulate safety measures and implement safer conditions did not raise a cognizable constitutional claim in a § 1983 action). Accordingly, a claim "sounding in tort law" and alleging mere negligence is not cognizable in a complaint under § 1983. Id. at 113; see Daniels v. Gilbreath, 668 F.2d 477, 487 (10th Cir. 1982) ("To have a § 1983 case . . . [i]t must appear that there has been a violation of a constitutional or fundamental right guaranteed by the fourteenth amendment or perhaps of the eighth amendment incorporated into the fourteenth.").
Here, Plaintiff has alleged no deprivation of his constitutional rights. See Major, 647 F.2d at 113 ("[T]he first inquiry in any [§] 1983 case is whether [the] plaintiff has been deprived of a right secured by the Constitution and laws of the United States."). Rather, he has alleged that his injury resulted from the SNMCF Defendants' failure to provide what he considers to be proper safety equipment.
Plaintiff claims that the SNMCF Defendants and Defendant Marable were deliberately indifferent to his serious medical need. Plaintiff's allegations fail to state a claim under the Eighth Amendment against any Defendant.
"A prison official violates an inmate's clearly established Eighth Amendment rights if he acts with deliberate indifference to an inmate's serious medical needs—if he knows of and disregards an excessive risk to inmate health or safety." Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (internal quotation marks omitted). Stated differently, prison officials violate the Eighth Amendment's ban on cruel and unusual punishment if their deliberate indifference to serious medical needs of a prisoner constitutes unnecessary and wanton infliction of pain. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
An Eighth Amendment claim of deliberate indifference to serious medical needs requires the plaintiff to demonstrate "both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Under the objective inquiry, the "alleged deprivation must be `sufficiently serious' to constitute a deprivation of constitutional dimension." Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Farmer, 511 U.S. at 834). Where an Eighth Amendment claim is premised on an alleged delay in medical care, the prisoner "must `show that the delay resulted in substantial harm' in order to satisfy the objective prong of the deliberate indifference test." Al-Turki v. Robinson, 762 F.3d 1188, 1192-93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)).
The subjective component requires "evidence of the prison official's culpable state of mind." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The subjective component may be fulfilled by showing that the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. That is, the prisoner must show that the defendant[ ] knew [that the prisoner] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal quotation marks omitted); see Martinez v. Garden, 430 F.3d 1302, 1304-05 (10th Cir. 2005). The pertinent question is whether the prisoner's symptoms were such that the defendant "knew the risk to the prisoner and chose (recklessly) to disregard it[.]" Mata, 427 F.3d at 753.
Additionally, "[a] prison medical professional 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 that gatekeeper role.`" Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1211).
Plaintiff claims that the SNMCF Defendants were deliberately indifferent to his serious medical needs. Plaintiff's Amended Complaint fails to allege facts that could amount to deliberate indifference by any SNMCF Defendant.
Plaintiff's factual allegations concerning Defendant Evans are as follows: While on his work assignment, a piece of metal flew up under Plaintiff's safety glasses and into his eye. [Doc. 8] at 12. Plaintiff flushed out his eye with water, and his eye felt better. Id. Plaintiff informed Defendant Evans of the incident while leaving the maintenance shop and returning to his living unit. Id. Plaintiff's eye "wasn`t hurting very much" at the time he returned to his living unit. Id.
This is not deliberate indifference on the part of Defendant Evans. Plaintiff gave himself care and felt better. He mentioned the incident to Defendant Evans, but he did not ask for assistance or medical care. Plaintiff does not allege feeling any eye irritation until long after he left the maintenance shop. The facts alleged—even if true—do not amount to deliberate indifference. Accordingly, I find that Plaintiff's claim of deliberate indifference against Defendant Evans is without merit.
Nor has Plaintiff alleged facts that could amount to deliberate indifference against the other SNMCF Defendants. In fact, Plaintiff has not alleged that he had any interaction or communication with Defendants Kaczmarek and Lerma following the injury. Plaintiff`s narrative indicates that at all times relevant, he either attended to his own needs or received assistance when he complained. Nothing suggests that SNMCF officers (Defendants and non-defendants alike) disregarded Plaintiff's request for medical care—much less acted with deliberate indifference. The facts alleged, even if completely true, simply do not amount to deliberate indifference. I find, therefore, that Plaintiff's claims of deliberate indifference against Defendants Kaczmarek, Lerma, and Barela are meritless. Accordingly, I recommend that Plaintiff's Eighth Amendment claims against the SNMCF Defendants be dismissed.
Plaintiff claims that Defendant Marable was deliberately indifferent to his serious medical need by delaying medical care. [Doc. 8] at 6. Defendant Marable examined Plaintiff`s eye on his request and invited him to return the next morning. Id. at 14. Nevertheless, later that same day, Defendant Marable flushed out Plaintiff's eye at the request of SNMCF officers. Id. Nothing appeared to come out of Plaintiff's eye, and Defendant Marable again instructed Plaintiff to return the next morning. Plaintiff now argues that Defendant Marable's actions amount to deliberate indifference. Id. at 6.
As with the SNMCF Defendants, the facts alleged—even if true—simply do not amount to deliberate indifference by Defendant Marable. Defendant Marable addressed Plaintiff's injury upon his and the SNMCF officers' requests. Nothing suggests that she acted with deliberate indifference. Besides, irrespective of Defendant Marable's alleged action (or inaction), Plaintiff went to the emergency room that same night, where the metal was removed. I find that Plaintiff's claim of deliberate indifference against Defendant Marable is meritless, and I recommend that it be dismissed.
I find that Plaintiff's claim concerning improper safety equipment is not cognizable under § 1983. Further, I find that Plaintiff has failed to state a claim for deliberate indifference against the SNMCF Defendants and Defendant Marable.
For the reasons set forth herein, I respectfully recommend that Plaintiff's Amended Complaint be
