Opinion
Civil Action 1:22-cv-00936-CNS-SBP
03-05-2024
LARRY G. MCGEE, Plaintiff, v. VICKIE NIRA, NURSE KAUTZ, SGT. DIERGA, CHRIS CHAVEZ, CHIEF SALAZAR, ANGIE TURNER, KARLA TORREZ, OFFICER JIMMY, NURSE JEREMY, DR. JEREMY LONG, CAPTAIN TRUJILLO, and JOHN DOES, Defendants.
RECOMMENDATION ON MOTIONS TO DISMISS
SUSAN PROSE, UNITED STATES MAGISTRATE JUDGE
This matter is before this court on three motions to dismiss pro se Plaintiff Larry G. McGee's (“Mr. McGee” or “Plaintiff”) current pleading, the second amended complaint (“SAC” or “Complaint”) filed at ECF No. 18. The first motion to dismiss is ECF No. 37, brought by Defendants Vickie Nira and Ms. Kautz of the Sterling Correctional Facility (“Sterling”) in the Colorado Department of Corrections (“CDOC”). Ms. Nira and Ms. Kautz will be referred to as the “CDOC Defendants.” The second motion is ECF No. 38, filed by Defendants Chris Chavez, Nurse Jeremy Romero, Steven Salazar, and Karla (Clara) Torrez of the Bent County Correctional Facility (“BCCF”), a private prison under contract with CDOC. The third motion is ECF No. 48, filed by Defendants Captain Donald Trujillo and Angie Turner, also both of BCCF. The motions seek dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Mr. McGee has responded. ECF No. 50 (response to CDOC Defendants); ECF No. 52 (combined response to both BCCF Defendants' motions). The CDOC Defendants replied at ECF No. 58, and the BCCF Defendants filed a combined reply at ECF No. 57.
Chavez, Salazar, Torrez, Romero, Turner, and Trujillo are referred to as the “BCCF Defendants.”
The undersigned magistrate judge considers the motions to dismiss pursuant to the order of reference (ECF No. 23), the memoranda referring the motions, and 28 U.S.C. § 636(b). For the reasons that follow, this court respectfully RECOMMENDS that the motions to dismiss be GRANTED. The court further RECOMMENDS that the claims against Sergeant Dierga and Dr. Jeremy Long, who have not been served and who have not appeared in the case, be DISMISSED without prejudice.
I. Background
The court draws the following facts from the SAC and presumes they are true for purposes of the motions to dismiss.
Mr. McGee is a state prisoner in CDOC's custody at Sterling. On April 18, 2022, he filed pro se his original Prisoner Complaint. ECF No. 1. Following three court orders directing him to cure various deficiencies (ECF Nos. 4, 8, and 12), and two earlier attempts to do so (ECF Nos. 5, 9), Mr. McGee filed the SAC, which is the operative pleading, on September 8, 2022. The SAC is twenty-eight pages long and is accompanied by thirteen pages of grievance materials from the periods of incarceration at BCCF and Sterling, which the court considers here in resolving the motions to dismiss.
Well-established Tenth Circuit precedent allows this court to consider exhibits to the pleadings in evaluating a motion to dismiss under Rule 12(b)(6). See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
The bulk of the SAC concerns Mr. McGee's medical conditions. Mr. McGee's factual allegations commence on February 7, 2019, when he “entered the Denver Reception and Diagnostic Center for processing as an incarcerated offender. On or about February 9, 20[19] Plaintiff began receiving his seizure medication along with high blood pressure” medication. SAC at 12 ¶ 2. “On or about April 3, 2019[,] Plaintiff was placed on a ‘Tumor' medication by Parker Adventist Hospital, who diagnosed” Mr. McGee with an unspecified “condition on the kidney's.” Id. ¶ 3.
Throughout his incarceration in BCCF, which began sometime in 2019, id. at 12, and later at Sterling (from April 13, 2021, to the present, id. at 24 ¶ 46), Mr. McGee claims to have suffered from several serious medical conditions: a seizure disorder, high blood pressure, a kidney tumor, an enlarged aorta, cardiac arrhythmia, and several strokes-the last occurring on or about September 21, 2020, while he was at BCCF. See generally id. at 13-25. He seems to contend that these conditions-namely, the cardiac conditions, the kidney tumor, high blood pressure, and a seizure disorder-have persisted during the period of his incarceration at Sterling, and that he also experiences post-stroke symptoms as a result of allegedly not receiving proper stroke and post-stroke care. Mr. McGee generally asserts that all Defendants were aware of his medical conditions and his requests for emergency medical care. See generally SAC at 1226.
The court separately discusses the allegations as to each Defendants in further detail below.
In addition to the alleged deficiencies in the treatment of his medical conditions, Mr. McGee asserts that, at Sterling, he lacks access to books and computers in the law library, which he attributes to “the current modified lockdowns from lack of Staff/Contract workers that have been for the past three years.” Id. at 11 ¶ 7. He also complains about responses (or lack thereof) to his grievances at both BCCF and Sterling. See generally id. at 9-11. And he asserts that he was slated to be transferred from BCCF to Fremont Correctional Facility in April 2021, but in “direct retaliation” for filing grievances he was sent to Sterling instead. Id. at 24 ¶¶ 44, 46.
Mr. McGee also refers to the Fourth and Fourteenth Amendments (SAC at 11, 27), but he alleges no factual support for such claims and this court discerns no basis to conclude that he has alleged a violation of these constitutional rights.
Based on these allegations, Mr. McGee brings three claims against all Defendants, each of whom is sued in their individual capacities. He also purports to sue the CDOC Defendants- but not the BCCF Defendants-in their official capacities. Id. at 25 ¶¶ 48-49; see also id. at 27 (stating that he seeks “declaratory and injunctive relief”). Claims One and Two are First Amendment claims, id. at 9-11, and his third claim alleges deliberate-indifference-to-medical needs in violation of the Eighth Amendment. Id. at 12-26.
The Eighth Amendment claim is also labeled “Claim Two.” SAC at 12.
II. Standard of Review
“To survive a [Rule 12(b)(6)] 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSFRy. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Nevertheless, 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.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a Rule 12(b)(6) motion). Rather, “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); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint,” and that the allegations must be sufficient to nudge a plaintiff's claims “across the line from conceivable to plausible”). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1276 (10th Cir. 2023) (internal quotation marks omitted, quoting Twombly, 550 U.S. at 556).
As to Defendants who have not yet been served or have not yet appeared-here, Sergeant Dierga and Dr. Long-the court can dismiss a claim when it is “patently obvious that the plaintiff could not prevail on the facts alleged.” Andrews v. Heaton, 483 F.3d 1070, 1074 n.2 (10th Cir. 2007).
In applying the above principles, this court is mindful that Mr. McGee proceeds pro se and thus affords his filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall, 935 F.2d at 1110, and applies the same procedural rules and substantive law to him as to a represented party. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); see also Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status ‘does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.'”) (citation omitted).
III. Analysis
A. Eighth Amendment Claims
In light of Mr. McGee's emphasis on his deliberate-indifference-to-medical-needs claim, which he brings against every Defendant, the court begins there.
The Eighth Amendment protects against the government's infliction of cruel and unusual punishment. U.S. Const. amend. VIII. “A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); see also Garcia v. Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985) (“Failure to provide adequate medical care is a violation of the Eighth Amendment if it is a result of deliberate indifference to a prisoner's serious medical needs.”). To establish a prison official's constitutional liability based on that official's deliberate indifference, a plaintiff must satisfy both objective and subjective components of the deliberate-indifference test. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component requires Mr. McGee to allege objective facts that demonstrate that the constitutional deprivation was “sufficiently serious.” Mata, 427 F.3d at 751 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
The subjective component requires Mr. McGee to sufficiently allege Defendants' culpable state of mind, i.e., to establish that Defendants knew he faced a substantial risk of harm, yet disregarded that risk. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations and citation omitted). “[A] prison official cannot be liable ‘unless 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 v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837). A culpable state of mind may be demonstrated where “prison officials prevent an inmate from receiving treatment or deny [the inmate] access to medical personnel capable of evaluating the need for treatment.” Sealock, 218 F.3d at 1211. Specifically, if “the medical professional knows that his role in a particular medical emergency is solely to serve as a gatekeeper for other medical personnel capable of treating the condition, and if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference, it stands to reason that he also may be liable for deliberate indifference from denying access to medical care.” Id. “The typical gatekeeper case involves non-medical personnel, such as prison guards, who fail to request medical assistance on behalf of a prisoner.” Oakley v. Phillips, No. 15-cv-01004-CMA, 2015 WL 5728734, at *8 (D. Colo. Sep. 30, 2015), appeal dismissed (10th Cir. Jan. 27, 2016).
Importantly, “[individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Therefore, Mr. McGee's pleading must contain well-pleaded, non-conclusory facts which plausibly show that each named defendant was personally responsible for the alleged deprivation of his constitutional rights. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Conclusory allegations of personal participation are insufficient to state a plausible claim. Gray v. Sorrels, 744 Fed.Appx. 563, 568 (10th Cir. 2018). And the well-pleaded facts “must provide a sufficient factual basis to make “an affirmative link between the alleged constitutional violation and each individual defendant's participation, control, direction, or failure to supervise.” Pittman v. Williams, No. 22-1441, 2023 WL 6564910, at *2 (10th Cir. Oct. 10, 2023) (quoting Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993)); see also Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1157 (10th Cir. 2001) (well-pleaded facts must plausibly establish an “affirmative link” between the defendant's conduct and the alleged violation).
“Unpublished opinions are not precedential, but may be cited for their persuasive value.” 10th Cir. R. 32.1(A). “[I]f an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition, [the Tenth Circuit] allow[s] citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).
As further relevant to the court's assessment of Mr. McGee's allegations, a denial of a grievance, in and of itself, does not suffice to allege personal participation. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983”); accord, e.g., Whitington v. Ortiz, 307 Fed.Appx. 179, 193 (10th Cir. 2009); Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011); Walters v. Corr. Corp. of Am., 119 Fed.Appx. 190, 191 (10th Cir. 2004).
1. BCCF Defendants
No Defendant (from either BCCF or Sterling) appears to dispute that Mr. McGee's pleading satisfies the first, objective component of the Eighth Amendment test. The court thus finds that Mr. McGee, who suffers from several serious medical conditions, has sufficiently alleged the existence of an objectively serious harm so as to satisfy the objective component of the deliberate-indifference test. The court therefore proceeds to determine whether Mr. McGee has sufficiently alleged that each Defendant knew of a substantial risk of serious harm to Mr. McGee and affirmatively disregarded an excessive risk to his safety. For the reasons set forth below, the court finds that he has not satisfied that pleading burden, for any Defendant.
a. Nonmedical BCCF Defendants
The court first analyzes the subjective prong in connection with the alleged conduct of BCCF Defendants who are nonmedical personnel: Chris Chavez, a Unit Manager; Steven Salazar, the Chief of Security at BCCF; Donald Trujillo, a “Unit Supervisor,” and Sergeant Dierga. SAC at 3, 6, 8.
Mr. Chavez. Mr. McGee's allegations against Mr. Chavez focus on the grievance process at BCCF. Mr. Chavez once failed to respond to a grievance from Mr. McGee. Id. at 15 ¶¶ 15, 16. Another time, Mr. Chavez served as a conduit between Mr. McGee and then-Health Services Administrator Angie Turner. Id. at 20 ¶ 31 (Chavez said that he would call Turner on behalf of McGee). In a third allegation, Mr. McGee asserts that Mr. Chavez met with Mr. McGee concerning a grievance, asked him “what can we do so this situation doesn't escalate,” and “offered to move Plaintiff to a dorm.” Id. at 20 ¶ 34. Mr. Chavez argues that these interactions with Mr. McGee fail to show that he “either disregarded to failed to take reasonable measures to abate Plaintiff's serious medical needs.” ECF No. 38 at 6. In response, Mr. McGee invokes the gatekeeper theory, asserting that Mr. Chavez “showed deliberate indifference by allowing those additional Defendants under his supervision, custody, and control”-he does not identify these “additional Defendants”-”to act in an indifferent and Gatekeeper manner when [he] failed to notify the proper medical personnel of the Plaintiffs deteriorating medical conditions.” ECF No. 52 at 8. The court respectfully disagrees with Mr. McGee.
The well-pleaded facts do not permit this court plausibly to infer that Mr. Chavez denied or delayed Mr. McGee's access to medical care. “Gatekeeper” liability may be imposed only when an officer deliberately prevents a prisoner from accessing medical care or interferes with care once it is prescribed. See, e.g., Estelle, 429 U.S. at 104-05 (recognizing claim against “prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed”) (footnotes omitted); Sealock, 218 F.3d at 1210 (reversing summary judgment for non-medical sergeant who allegedly observed the prisoner's symptoms of having a heart attack and “refused to transport appellant immediately to a doctor or a hospital because it was snowing outside and it would take time to warm up the prison van”). Mr. McGee has not alleged such facts here.
Mr. McGee asserts that Mr. Chavez knew from Mr. McGee's grievances that he was “getting worse due to lack of treatment after the Stroke's [sic].” SAC at 15 ¶ 15. But even if the court assumes that the non-medical BCCF officers could not reasonably rely on the medical staff's judgment concerning what treatment Mr. McGee needed (see, e.g., Weatherford ex rel. Thompson v. Taylor, 347 Fed.Appx. 400, 404 (10th Cir. 2009)), Mr. McGee's assertion that he was “getting worse” is insufficient to allege that Mr. Chavez disregarded an “excessive risk” to Mr. McGee's health or safety or affirmatively drew the inference that Mr. McGee faced a substantial risk of serious harm. Farmer, 511 U.S. at 837. The court undertakes the plausibility analysis by considering the entire context of Mr. McGee's allegations. See Iqbal, 556 U.S. at 687 (plausibility analysis is “a context-specific task”). Here, that includes Mr. McGee's allegations that Mr. Chavez offered to move him to a “dorm setting in the Incentive Unit whatever Plaintiff needed” to better address his medical needs. SAC at 20-21 ¶ 34 (emphasis added). Mr. McGee, however, declined Mr. Chavez's offer. Id. And Mr. Chavez also offered to serve as a conduit between Mr. McGee and the institution's Health Services Administrator. Id. ¶ 31 (Chavez said that he would call Turner on behalf of McGee). These allegations make implausible the conclusion that Mr. Chavez acted with the “sufficiently culpable state of mind” required to demonstrate deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 297-98 (1991).
Mr. McGee also complains that Mr. Chavez accepted a “kite” from Mr. McGee to give to the Health Services Administrator (or that Mr. McGee had given the envelope to another correctional officer to give to Chavez for the HSA), and that he subsequently learned that the kite “was not in fact accepted by” Mr. Chavez-for a reason that cannot be gleaned from the pleading. Id. at 18 ¶¶ 24-26. But Mr. McGee re-submitted the kite and does not allege that the one-week delay in its reaching the HSA substantially harmed him. Id.
Too, the well-pleaded facts show that Mr. McGee received medical care and/or was seen by a prison or outside medical provider no fewer than sixteen times during the period of his incarceration at BCCF. See SAC at 12-26, ¶¶ 3 (Parker Adventist Hospital); 5 (Pueblo Community Hospital); 7 (hospital in La Junta and Pueblo); 9 (second trip to hospital in La Junta); 10 (BCCF physician); 18 (escorted to unidentified “Provider); 19 (BCCF physician); 20 (prescription from neurologist at Pueblo Community Hospital); 27 (BCCF physician and neurologist at Denver Health); 29 (BCCF physician); 30 (BCCF physician); 32 (Denver Health neurologist); 37 (BCCF physician); 38 (two Denver Health neurologists); 40 (outside “medical facility”); 43 (Denver Health cardiologist). Insofar as Mr. McGee implies that Mr. Chavez could have done more to ensure a more satisfactory(from Mr. McGee's perspective) level of treatment for his medical conditions, an inmate does not have a constitutional right to a particular course of treatment. See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006). Here, Mr. McGee's allegations cannot reasonably be construed as a desire for more than that-a preferred course of treatment-further showing that he has failed to plausibly establish Mr. Chavez's culpable state of mind.
For these reasons, the court finds that Mr. McGee's allegations are insufficient to demonstrate that Mr. Chavez was subjectively deliberately indifferent to Mr. McGee's serious medical needs. The court therefore respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Mr. Chavez. See Gee, 627 F.3d at 1186 (stating that “ordinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint”) (citations omitted).
Mr. Salazar. Mr. Salazar, the Chief of Security at BCCF, is mentioned in only one paragraph of the SAC. According to Mr. McGee, he was “called out to meet with Chief Salazar” on July 30, 2020. SAC at 21 ¶ 30. During the meeting that Mr. Salazar called, he asked “to review and verify . . . information” about Mr. McGee, and wanted to know “what was it that he could do to make the situation better” for Mr. McGee. Id. (emphasis added). Mr. Salazar also offered to move Mr. McGee, but Mr. McGee again declined. Id. Finally, Mr. Salazar “informed Plaintiff to either contact him or the Unit Man[a]ger Chavez for anything that I needed.” Id.
The court finds that these allegations fall short of demonstrating that Mr. Salazar disregarded, with culpable subjective intent, an excessive risk to Mr. McGee's health or safety. In response to the motion to dismiss, Mr. McGee now contends that “he was in pain” on July 30, 2020, when he met with Mr. Salazar, and he criticizes Mr. Salazar for not “offer[ing] to seek medical assistance for Plaintiff[‘]s ongoing problems, see ECF No. 52 at 7, but these are new allegations not contained in the SAC which this court will not consider here. See Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (“Plaintiff, however, cannot amend her complaint by adding factual allegations in response to Defendant's motion to dismiss.”). And even if the court were to allow Mr. McGee to amend his pleading in this improper manner, he does not contend that he made Mr. Salazar aware of his pain or somehow advised him that he was in need of immediate medical assistance. Neither do the well-pleaded facts concerning Mr. Salazar suggest that he denied or delayed Mr. McGee's access to medical care so as to plausibly demonstrate that Mr. Salazar possessed the subjectively culpable intent to trigger liability under a gatekeeper theory.
In sum, Mr. McGee's allegations about Mr. Salazar are insufficient to demonstrate that Mr. Salazar was subjectively deliberately indifferent to Mr. McGee's serious medical needs. The court therefore respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Mr. Salazar.
Mr. Trujillo. Mr. Trujillo, a shift supervisor at BCCF, is mentioned but a single time in the SAC. He is alleged to have been present at the meeting about one of Mr. McGee's grievances, when Mr. Chavez asked Mr. McGee what could be done “so this situation doesn't escalate?” SAC at 20 ¶ 34. Mr. Trujillo, personally, is not alleged to have spoken at that meeting.
From this allegation, the court can discern no plausible basis to infer that Mr. Trujillo denied, delayed, or in any way interfered with Mr. McGee's access to medical care. Mr. McGee attempts to bolster this claim in his response to the motion to dismiss, characterizing Mr. Trujillo as “a high-level official at BCCF” ECF No. 52 at 7. But even assuming the truth of the contention that Mr. Trujillo possessed supervisory authority, Mr. McGee was obliged to “provide a sufficient factual basis to make an affirmative link between the alleged constitutional violation” and Mr. Trujillo's supposed “failure to supervise.” Pittman, 2023 WL 6564910, at *2; see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”) (collecting cases). The SAC contains no such allegations. Even if Plaintiff has adequately alleged that Mr. Trujillo maintains a position of authority at BCCF, that allegation is “insufficient to plausibly claim both personal participation and deliberate indifference.” Pittman, 2023 WL 6564910, at *2. And the mere fact of his involvement in a prison grievance procedure also is insufficient to establish the requisite personal participation for purposes of conferring liability under § 1983. See, e.g., Gallagher, 587 F.3d at 1069.
Here, too, the court finds the well-pleaded facts insufficient to demonstrate that Mr. Trujillo was subjectively deliberately indifferent to Mr. McGee's serious medical needs. The court therefore respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Mr. Trujillo.
Sergeant Dierga. Mr. McGee alleges only that Sergeant Dierga “assist[ed] other A-Team staff to transport Plaintiff to the emergency medical hospital in Pueblo, CO,” and that Mr. McGee gave a grievance to Sergeant Dierga. SAC at 3, 20 ¶ 33. Mr. McGee does not allege any failure by Sergeant Dierga to allow or obtain access to medical care for Plaintiff. Accordingly, the court respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Sergeant Dierga.
As noted above, while Sergeant Dierga has not been served or appeared in this case, it is “patently obvious that the plaintiff could not prevail on the facts alleged.” Andrews, 483 F.3d at 1074 n.2.
b. Medical BCCF Defendants
The court next turns to the claims against the BCCF Defendants who are medical personnel: Angie Turner (the Health Services Administrator or “HSA”), Karla (Clara) Torrez (a “nurse technician”), and Jeremy Romero (a nurse).
Ms. Turner. Ms. Turner was the HSA, and not herself a medical provider, at the time of Plaintiff's incarceration at BCCF. The totality of Plaintiff's allegations against Ms. Turner are as follows:
• Sometime on or around July 30, 2019, Plaintiff sent Ms. Turner a kite “requesting emergency medical assistance”-he does not specify what his “emergency” was at the time-but received no response, so he sent her another kite. Mr. McGee does not describe Ms. Turner's response to the second kite. SAC at 12 ¶ 4.
• Mr. McGee had an ultrasound on September 9, 2019. Ms. Turner received those results on February 5, 2020, and notified Plaintiff that the results were inconclusive. Id. at 13 ¶ 6.
• On or about April 3, 2020, Ms. Turner “ordered” that Plaintiff be taken to a hospital in La Junta for treatment for a “second stroke.” Id. at 4 ¶ 9.
• On or about May 2, 2020, Mr. McGee was advised to write a kite to Ms. Turner, but he received no response. Id. at 16 ¶ 17.
• On or about May 10, 2020, a neurologist at Pueblo Community Hospital prescribed Plavix for Mr. McGee, who in turned asked Ms. Turner “to complete the [Do Not Resuscitate Form” for the prescription. In the same paragraph, Plaintiff seems to contend that, after May 16, 2020, he had no follow-up with the neurologist and no “therapy.” Id. at 17 ¶ 20.
• On June 3, 2020, Mr. McGee put together a kite to Ms. Turner “concerning his serious medical condition that was life threatening,” but he rewrote it and resubmitted it a week later. As of July 10, 2020, Plaintiff had not received a response from Ms. Turner. Id. at 18 ¶¶ 24, 26; id. at 20 ¶ 31.
The court takes notice of the fact that Plavix is an antiplatelet drug that may be prescribed to persons who have had a heart attack or stroke. See Clopidogrel (Plavix): Uses & Side Effects (clevelandclinic.org) (last visited March 2, 2024); see also Fed.R.Evid. 201 (permitting court to take judicial notice of a fact that is not subject to reasonable dispute because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).
The court finds these allegations insufficient to plausibly show that Ms. Turner subjectively possessed the requisite culpable state of mind to state a deliberate-indifference claim against a non-provider gatekeeper. The well-pleaded facts show that she conveyed to Mr. McGee test results that were received from outside providers. She “ordered” that he be sent to an outside hospital. On September 9, 2019, after Mr. McGee had requested some unspecified “emergency medical assistance” in a kite on July 30, 2019, he was transferred to the “Pueblo Community hospital to receive an Ultra Sound on his Kidney's [sic], Bladder, and the Aorta.” Id. at 13 ¶ 5. On May 10, 2020, eight days after he was advised to write a kite to Ms. Turner, a neurologist at an outside hospital issued him a prescription for Plavix. And although he complains that Ms. Turner had not responded to a kite as of July 10, 2020, just five days later-on July 15, 2020- he “was taken on a day trip to Denver Health Medical Hospital to see the Neurologist Dr. Bush.” Id. ¶ 32. Mr. McGee alleges that Dr. Bush stated that “Plaintiff had been waiting on several additional check ups” and that “[t]he common opinion is that, if somebody isn't treated soon, it could get very bad very quickly.” Id. Numerous appointments and testing followed shortly thereafter. On August 5, 2020, he had “neurology tests performed.” Id. at 21 ¶ 37. Then “[o]n about August 18th through the 30th 2020, Plaintiff had an appointment at the Denver Health Medical Center and received a MRI for head and brain injuries along with a ‘CAT' Scan with contrast of the head and neck.” Id. 22 ¶ 38 (cleaned up). By “September 14, 2020 to September 21, 2020, . . . all requested tests had been approved.” Id. at 22 ¶ 40. The SAC reflects even more appointments with outside specialists after September 2020 and before Mr. McGee was transferred from BCCF to Sterling in April 2021.
While Mr. McGee asserts in response that Ms. Turner “failed to schedule (or to reschedule) Plaintiff for a known serious medical condition(s), ignoring his multiple pleas for help and his medical emergency without cause,” see ECF No. 52 at 9, his pleading belies that argument. The well-pleaded facts instead show that Ms. Turner facilitated Mr. McGee's obtaining outside kidney, neurological, and cardiac care. See Estelle, 429 U.S. at 107-08 (claim against prison doctor in individual and official capacities failed because the prisoner had been provided care by a doctor several times, and the question of whether an x-ray should have also been taken was a question of “medical judgment” that at best would fall under medical malpractice, not deliberate indifference). Although Mr. McGee alleges that he had been “waiting on several additional check ups” with respect to neurological care, he does not allege that Ms. Turner knew of the need for those “check ups” and deliberately did not seek authorization for them. No inference of Ms. Turner's having deliberately thwarted Mr. McGee's access to medical care can be drawn from the well-pleaded facts.
Because Mr. McGee has failed to allege facts plausibly establishing that Ms. Turner was subjectively deliberately indifferent to his serious medical needs, the court respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Ms. Turner.
Ms. Torrez. Likewise do Mr. McGee's four allegations concerning Ms. Torrez, the nurse technician, evince no deliberate disregard of an excessive risk to Mr. McGee's health or safety.
First, on May 2, 2020, after Plaintiff informed Ms. Torrez of spreading numbness in his face, she told him to send a kite to Ms. Turner. SAC at 16 ¶ 17. Ms. Turner allegedly did not respond, id., but that does not plausibly suggest deliberate indifference on Ms. Torrez's part. Second, on June 13, 2020, Ms. Torrez informed Mr. McGee that he was scheduled to see two physicians at the end of that month: Dr. Amber Wobbenkind, a physician at BCCF, and a neurologist at Denver Health. Id. at 18-19 ¶ 27. Ms. Torrez told Mr. McGee that she “was very concerned about [his] condition, that the latest episodes were not seizures, but Stroke's [sic].” SAC at 18-19 ¶ 27. However, the court cannot conclude that Ms. Torrez's expression of concern about Plaintiff-while simultaneously recognizing that he was scheduled to see physicians who could help-plausibly demonstrates a subjective manifestation of deliberate indifference on her part.
Third, Plaintiff alleges that sometime around the end of July or early August 2020, Ms. Torrez relayed to him that “nothing had been approved by DOC as of yet,” id. at 21 ¶ 36, but within three days-on August 5, 2020-Mr. McGee had a medical appointment “in which there were neurology tests performed” and he was informed that he would see Dr. Wobbenkind on August 17 “and then go back to Denver Health Hospital.” Id. These allegations do not demonstrate a subjective intent on the part of Ms. Torrez to ignore Plaintiff's serious medical needs. Fourth, and similarly, Ms. Torrez conveyed to Plaintiff-apparently sometime between September 14 and September 21, 2020-that “all requested tests had been approved.” Id. at 2223 ¶ 40. While Mr. McGee indicates that he “was sent back to the Unit without any therapy or any follow-ups whatsoever,” id., he does not allege that it was within Ms. Torrez's power-or the scope of her practice as a nurse technician-to administer the “therapy and follow-ups,” which Mr. McGee believes are “required by licensed professionals.” Id.
Mr. McGee mentions Ms. Torrez only once in his response to the motion to dismiss, asserting that she “knew that plaintiff faced a substantial risk of harm” and “failed to take reasonable measures to abate it.” ECF No. 52 at 5. But that is merely an iteration of a legal standard for which his pleading provides no factual support. At bottom, the well-pleaded facts do not plausibly indicate that Ms. Torrez knowingly disregarded an excessive risk to Mr. McGee's health or safety. Plaintiff does not allege that Ms. Torrez declined to treat him or to seek care for him to the extent of her authority as nurse technician. And insofar as the SAC may be liberally construed as alleging more generally that Ms. Torrez failed to provide adequate or competent care, “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
Mr. McGee mentions malpractice, negligence, and incompetence throughout his complaint, see, e.g., SAC at 27, but he does not bring such a claim. He also has not alleged that he has complied with the requirement to obtain a certificate of review before filing a claim of negligence against a licensed professional. See Colo. Rev. Stat. § 13-20-601 (requiring “that the certificate of review requirement should be utilized in civil actions for negligence brought against those professionals who are licensed by this state to practice a particular profession and regarding whom expert testimony would be necessary to establish a prima facie case”); see also Colo. Rev. Stat. § 13-20-602(4) (“The failure to file a certificate of review in accordance with this section shall result in the dismissal of the complaint[.]”).
As with his claim against Ms. Turner, Mr. McGee has failed to allege facts plausibly showing that Ms. Torrez was subjectively deliberately indifferent to his serious medical needs. The court therefore respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Ms. Torrez.
Mr. Romero. Mr. McGee raises the following allegations concerning Mr. Romero, who was a nurse at BCCF:
• On some unidentified date, Mr. Romero-who is alleged to be “part of the A-Team Emergency Response Unit” at BCCF-took Plaintiff's blood pressure “because he had suffered another Stroke.” SAC at 13 ¶ 8.
• On April 20, 2020, Mr. Romero saw Plaintiff at “a scheduled medical appointment.” Id. at 14 ¶ 12.
• On the evening of April 26, 2020, Plaintiff “attempted to push the cell emergency call-button”-it is unclear whether he succeeded-and received no response, even though a guard named “Angel” was on duty. Id. at 15 ¶ 13.
• The next day, on April 27, 2020, an inmate named Neal told Plaintiff that Neal had spoken with Mr. Romero and informed him that Plaintiff needed to speak with Mr. Romero, but Mr. Romero did not contact Plaintiff after this conversation with Neal. Id. at 15 ¶ 14.
• On June 1, 2020, Plaintiff “was awakened by” Mr. Romero-who apparently was in Plaintiff's cell-who “explained to Plaintiff what his options would be and that the option of being transferred to a hospital were slim due to the circumstances concerning the stroke had already subsided.” Id. at 17-18 ¶ 23.
• Finally, on some unidentified date, Mr. McGee's cellmate Travis used the prison
intercom system to call for emergency assistance, and no one-including Mr. Romero-responded. Id. at 19 ¶ 28.
Mr. McGee alleges that Mr. Romero “did respond to document the event,” SAC at 19 ¶ 28 (emphasis added), but taking into account the larger context of the allegation, the court deferentially construes Mr. McGee as intending to allege that Mr. Romero did not respond.
The court respectfully finds that these facts, liberally construed in Mr. McGee's favor, do not sufficiently allege the subjective component of an Eighth Amendment claim against Mr. Romero.
Mr. McGee alleges that Mr. Romero once took his blood pressure, id. at 13 ¶ 8, but he does not allege when that occurred, what that reading was, or how Mr. Romero reacted. Plaintiff asserts that the reading was taken sometime after he had “suffered another stroke,” but he does not allege facts showing that Mr. Romero was subjectively aware of Plaintiff's having been diagnosed with a stroke (assuming that he had been). There are no allegations that Mr. Romero was responsible for Plaintiff's primary care or possessed an understanding of Plaintiff's overall medical condition-or that Mr. Romero disregarded an alarmingly high blood pressure reading. Neither can the court draw any inference of a subjectively culpable state of mind from the fact that Mr. Romero saw Plaintiff at a medical appointment on April 20, 2020. Id. at 14 ¶ 12.
The allegation about a conversation between Neal and Mr. Romero on April 27, 2020, id. at 15 ¶ 14, demonstrates no subjective awareness on Mr. Romero's part of a substantial risk of serious harm to Mr. McGee. Other than the fact that Neal told Mr. Romero that “Plaintiff need[ed] to speak with” him, id., it is unclear what else, if anything, Neal may have conveyed. At most, the court reasonably may infer that Mr. Romero may have understood that Mr. McGee needed to speak with him, but no well-pleaded facts suggest that Neal conveyed to Mr. Romero information suggesting an urgency associated with Plaintiff's medical condition, or that Mr. Romero actually perceived that Plaintiff had an urgent medical need. Neither can the court infer that Mr. Romero perceived, and disregarded, an excessive risk to Plaintiff's health and safety in their encounter of June 1, 2020. Id. at 17-18 ¶ 23. At that time, Mr. Romero is alleged to have explained “options” to Plaintiff and stated that Mr. Romero did not think it likely that Plaintiff would be transferred to a hospital-indicating, if anything, that Mr. Romero did not perceive substantial risk of serious harm to Plaintiff sufficient to warrant emergency intervention. And while Plaintiff appears to believe that “the circumstances” at that time indicated that a stroke “had already subsided,” id., he does not allege that Mr. Romero concurred, or that he subjectively understood that Plaintiff faced a substantial risk of serious harm at that time.
Finally, with regard to Mr. McGee's allegation that Mr. Romero (or any other BCCF staff member) did not respond when Mr. McGee pressed the emergency assistance button on an unspecified date, id. at 19 ¶ 28, more than this is required to plead that Mr. Romero acted with deliberate indifference. The well-pleaded facts permit no inference that Mr. Romero was aware of this call, was in a position to respond and-with subjective awareness of an existing substantial risk of serious harm to Plaintiff-deliberately disregarded his plea for help. Cf. Al-Turk v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014) (prison nurse found not entitled to qualified immunity where she was specifically made aware that prisoner was experiencing severe abdominal pain that “may be a symptom of several serious and potentially life-threatening conditions,” but responded that “she would not see Plaintiff because it was too late and because Plaintiff's complaint was not an emergency”); Estate of Kowalski v. Shrader, No. 21-cv-00827-NYW, 2022 WL 19422, at *10 (D. Colo. Jan 3, 2022) (denying qualified immunity on a motion to dismiss where prison personnel were alleged to have been near an inmate's cell “and saw and heard the emergency call button ‘continually alarming,”‘ and “were close enough to hear [his cellmate] yelling for help and close enough to see [the cellmate's] face through the cell door”).
Put simply, Mr. McGee has failed to allege that Mr. Romero consciously disregarded a known serious risk of harm to Mr. McGee. Mr. McGee's response to the motion to dismiss contains no argument suggesting otherwise. ECF No. 52 at 5 (in sole mention of Romero, stating without reference to well-pleaded facts, that Romero “knew that plaintiff faced a substantial risk of harm” and “failed to take reasonable measures to abate it”). But that is merely a statement of a legal standard for which Plaintiff's pleading provides no factual support.
Because the well-pleaded facts permit no inference that Mr. Romero possessed the requisite culpable state of mind to establish the second element of a deliberate-indifference claim, the court respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim be DISMISSED without prejudice with respect to Mr. Romero.
* * *
In sum, the court finds that the Eighth Amendment claims against each BCCF fail because Mr. McGee has failed to adequately allege the subjective element of a deliberate-indifference claim.
Mr. McGee brings no official-capacity claims against any BCCF Defendant. The court therefore has no reason to consider whether Mr. McGee has alleged that BCCF (or its owner, CoreCivic) “directly caused the constitutional violation by instituting an ‘official municipal policy of some nature,' that was the ‘direct cause' or ‘moving force” behind the constitutional violations.” Smedley v. Corr. Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir. 2005) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85 (1986)); see also id. (“it is now well settled that Monell [v. Department of Social Services, 436 U.S. 658 (1978)] also extends to private defendants sued under § 1983”) (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir.
2. CDOC Defendants
Both CDOC Defendants, Ms. Kautz (identified as a nurse practitioner) and Ms. Nira (identified as the Sterling Health Services Administrator) are sued in their individual and official capacities.
a. Individual-Capacity Claims
Qualified immunity. Because Ms. Nira and Ms. Kautz raise a defense of qualified immunity, Mr. McGee's well-pleaded facts must plausibly show that (1) these Defendants violated a constitutional right or statutory right and (2) the right was “clearly established” at the time of the challenged conduct. Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019). Moreover, “[t]he record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise, the defendants are entitled to qualified immunity.'” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877-78 (10th Cir. 2014) (quotingMedina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)).
An official's conduct violates clearly established law when, at the time of the challenged conduct, “the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (cleaned up) (emphasis added). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'”Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotingMalley v. Briggs, 475 U.S. 335, 341 (1986)). For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision “on point,” or the “weight 2003) (collecting circuit court cases)). of authority from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (quotation omitted).
And the Supreme Court has “repeatedly told courts not to define clearly established law at a high level of generality since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1106 (10th Cir. 2014) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). While a plaintiff is not required to cite a case with “identical facts” to demonstrate a clearly established right, Kapinski v. City of Albuquerque, 964 F.3d 900, 910 (10th Cir. 2020), clearly established law must place the constitutional issue “beyond debate.” Mullenix, 577 U.S. at 16 (quotation omitted). It is the plaintiff's obligation to cite cases that satisfy the burden of demonstrating the asserted law is clearly established. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (“The plaintiff bears the burden of citing to us what he thinks constitutes clearly established law.”).
As noted above, the CDOC Defendants do not argue that Mr. McGee has failed to allege the objective component of an Eighth Amendment claim, i.e., that he had a sufficiently serious medical need. The argument in support of qualified immunity thus focuses on the subjective component-whether the CDOC Defendants knew that Plaintiff faced a substantial risk of harm, and yet disregarded that risk-and whether Mr. McGee has shown that a constitutional right was clearly established at the time of their alleged conduct. The court proceeds to evaluate the allegations against each CDOC Defendant pursuant to these legal principles, beginning with Ms. Kautz.
Ms. Kautz. Read liberally, the SAC raises two allegations against Ms. Kautz: (1) that she has seen Plaintiff “on a couple of occasions,” but “hasn't tried to have him seen by other outside source,” SAC at 3, and (2) that, on some unidentified date, Plaintiff informed her about an “emergency” and “about the need for treatment, but [he] did not receive any assistance up until April 27, 2022.” Id. at 25 ¶ 48. These contentions are insufficient to allege that Ms. Kautz was aware of, and affirmatively disregarded, a substantial risk of serious harm to Mr. McGee's health or safety. See Farmer, 511 U.S. at 837.
In his response brief, Mr. McGee asserts that he told Ms. Kautz he was “suffering severe chest pain” by kites and through other prison officials. ECF No. 50 at 9. But he does not allege those facts in the SAC and asserting them in a response brief does not suffice to amend his complaint. Abdulina, 79 F.Supp.3d at 1206.
The first allegation does not suffice to show what Ms. Kautz might have subjectively discerned from the “couple of occasions” on which she saw him, including whether these encounters provided sufficient grounds to allow her affirmatively to infer that he faced a substantial risk of serious harm. Not only is this allegation insufficient to allege the subjective component, it also reveals another flaw in Mr. McGee's pleading: his preference to be seen by an “outside source” or provider. As the Tenth Circuit repeatedly has made clear, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Oxendine, 241 F.3d at 1277 n.7; Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (same). And even if Ms. Kautz's care might be considered insufficient in some way, that does not rise to the level of an Eighth Amendment violation. See, e.g., Sealock, 218 F.3d at 1211 (holding nurse was not deliberately indifferent when she misdiagnosed a prisoner's heart attack as the flu and failed to pass on key medical information to treating professional).
As for the second allegation, that Ms. Kautz was informed about an “emergency” and a “need for treatment,” there are again no well-pleaded, non-conclusory facts to show what Ms. Kautz was told, or when, or that somehow would allow this court to infer that she approached Plaintiff's care with an “extraordinary degree of neglect.” See Self, 439 F.3d at 1232 (“[T]he subjective component is not satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment. Matters that traditionally fall within the scope of medical judgment are such decisions as whether to consult a specialist or undertake additional medical testing.”). Indeed, taking into account the totality of Mr. McGee's allegations covering the period of his incarceration at Sterling, see SAC at 25-26 ¶¶ 47-52, he has not alleged that he experienced a stroke or stroke-like symptoms during that time, that his blood pressure was at a dangerously high level, that he experienced any problems with his kidney, or that he suffered any seizures. And to the extent Plaintiff may seek to impose liability on Ms. Kautz under a gatekeeper theory, he has not plausibly alleged that any “emergency” existed that obliged Ms. Kautz to obtain care for Plaintiff from another source-or that she had the authority to do so. Sealock, 218 F.3d at 1211.
Mr. McGee's failure to plead a constitutional violation at all-much less the violation of a constitutional right that was clearly established at the time of the alleged violation, see Mullenix, 577 U.S. at 16-means that he has not met his “heavy two-part burden” to overcome Ms. Kautz's invocation of qualified immunity. Felders, 755 F.3d at 877-78. Mr. McGee points to no Tenth Circuit or Supreme Court case that would have put every reasonable official in Ms. Kautz's position on notice, beyond debate, that her alleged actions violated his constitutional rights, and this court has located no such law. Mullenix, 577 U.S. at 16.
Because Mr. McGee has not met both prongs of his burden to overcome Ms. Kautz's defense of qualified immunity, the court respectfully RECOMMENDS that the Eighth Amendment claim against her be DISMISSED with prejudice.
See, e.g., Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010 (instructing district court to dismiss based on qualified immunity “with prejudice”); Lybrook v. Members of the Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir. 2000) (affirming district court order granting motion to dismiss with prejudice on qualified immunity grounds); Vreeland v. Olson, No. 20-cv-02330-PAB-SKC, 2021 WL 4237269, at *5 n.7 (D. Colo. Sept. 16, 2021) (“The Court will dismiss the claim against Olson and Reed [brought by a pro se plaintiff] with prejudice because they are entitled to qualified immunity); McCrary v. Jones, No. CIV-13-573-M, 2015 WL 873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was entitled to qualified immunity).
Ms. Nira. The entirety of Mr. McGee's allegations concerning HSA Nira, including those contained in the documents he appended to his Complaint, are as follows:
• On March 10, 2022, Ms. Nira wrote the following note to Plaintiff:
I have reviewed the paper work you had mailed to me.
1. You have not followed through with the Grievance process as stated in AR 850-04, this is your next step in order for other people to review and follow up on the process.
2. I did notice you did not take your medication every day, I would encourage you to go to med line and take your medications as prescribed. Thank you.
SAC at 42.
• On March 24, 2022, Plaintiff wrote a grievance in which he claimed to have notified “medical staff” at Sterling about a variety of medical afflictions, including that he has a “4.1 cm aneurysm upper heart valve, must not reach 5 cm surgery is mandatory as known the head Provider-at SCF A (Vickie Nira) . . . has not taken the necessary steps to secure an Emergency surgery scheduling as ordered by the Chief Medical Cardiologist at the Denver Health Medical Center.” SAC at 36 (duplicate at 37); see also id. at 14 ¶ 49 (Nira “was made aware of said emergency concerning blood pressure and heart condition, along with stroke condition” in a grievance).
• On April 23, 2022, a person named Nichole White responded to Plaintiff's March 24 grievance, stating: “HSA Nira is not a provider she practices as a nurse so she is unable to give you an order for any procedure. Please kite your provider regarding plan of care.” Id.
• On July 21, 2022, Ms. Nira responded to a grievance from Plaintiff in which she wrote:
My understanding of your grievance is you would like the orders from the Neurologist be followed.
...
You were seen by Neurology on 06/29/22. They recommended to continue the Keppra and have a sleep study.
You received a sleep study on 06/16/22 and you have a Keppra order. Please kite your provider to follow up as needed.
SAC at 40; id. at 19 ¶ 5.
• According to Plaintiff, Ms. Nira “falsely stated” the point about the sleep study “because at the time of this reply Plaintiff had not received any such study.” Id. at 19 ¶ 5 (emphasis added).
As authorized by Federal Rule of Evidence 201, the court takes notice that Keppra, or levetiracetam, is a medication that “prevents and controls seizures in people with epilepsy.” See Levetiracetam Tablets (clevelandclinic.org) (last visited March 3, 2024); see also Keppra Uses, Dosage & Side Effects - Drugs.com (last visited March 3, 2024) (describing Keppra as “an antiepileptic drug” used to treat “seizures in people with epilepsy, including partial onset seizures, myoclonic seizures, and tonic-clonic seizures”).
These facts, even taken as true and liberally construed in favor of Mr. McGee, do not adequately allege (1) that Ms. Nira was aware of facts showing that Mr. McGee faced an excessive risk to his health or safety and (2) that, based on those facts, Ms. Nira actually drew the inference that Mr. McGee faced a substantial risk of serious harm. See Self, 439 F.3d at 1231. Rather, they demonstrate that Ms. Nira reviewed Plaintiff's medical records and noted his noncompliance with his medication regimen-a defect she urged him to rectify. SAC at 42. Later, after learning that Plaintiff wanted orders from a neurologist to be followed (or, at least, followed in the manner Plaintiff preferred), Ms. Nira again reviewed his file, verified that he had been “seen by Neurology on 06/29/22” (approximately three weeks before her July 21, 2022 response), and noted that “Neurology” had recommended that he continue with his Keppra prescription and have a sleep study. SAC at 40. Mr. McGee has not alleged that Ms. Nira prevented him from access to Keppra; to the contrary, the well-pleaded facts show that she has urged him to take his medications. And if Ms. Nira was mistaken in her belief that Plaintiff had completed the sleep study “at the time of [her] reply,” as Mr. McGee asserts, id. at 19 ¶ 5, that is not an error plausibly indicative of culpable subjective intent.
This allegation most plausibly suggests that Mr. McGee did have a sleep study, just not on the date that Ms. Nira referenced in her response to his grievance-a minor matter of no constitutional significance.
It is well-settled that “negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Perkins, 165 F.3d at 811; see also Estelle, 429 U.S. at 106 (“[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.”); Ajaj v. Fed. Bureau of Prisons, No. 08-cv-02006-MSK-MJW, 2011 WL 902440, at *16 (D. Colo. Mar. 10, 2011) (“[T]he Constitution is only implicated in situations in which prison officials act purposefully to impose unnecessary pain on an inmate; ‘inadvertent' denials of care or negligent diagnosis or treatment does not rise to the level of an 8th Amendment violation.”), aff'd, 561 Fed.Appx. 657 (10th Cir. 2014).
Finally, to the extent that Mr. McGee alleges that Ms. Nira unconstitutionally delayed his access to an “emergency surgery scheduling” for a “4.1 cm aneurysm upper heart valve,” SAC at 36, Mr. McGee also has failed to plead the subjective intent prong of a deliberate-indifference claim. Other than these statements, which Mr. McGee wrote in a grievance, he pleads no non-conclusory facts to support the assertion that a cardiologist “ordered” surgery or that surgery was urgently required. Nor does he allege that this “4.1 cm aneurysm” has now expanded to “5 cm” in size, such that he currently requires surgery or will require it in the near future.
These facts leave the court unable to find that Mr. McGee has plausibly alleged that Ms. Nira exhibited an “extraordinary degree of neglect” toward his medical condition as required to satisfy the subjective element of a deliberate-indifference claim. See Self, 439 F.3d at 1232. There is nothing in Mr. McGee's Complaint to suggest that Ms. Nira (1) failed to treat a serious medical condition properly or (2) denied or deliberately delayed his access to appropriate medical intervention. See Sealock, 218 F.3d at 1211. And Mr. McGee has pointed to no clearly established law that would have made it clear, beyond debate, to every reasonable official in Ms. Nira's position that her actions were in violation of Mr. McGee's constitutional rights. Mullenix, 577 U.S. at 16. This court also is unaware of such a case.
Neither do the well-pleaded facts allow the court to infer Ms. Nira's personal involvement in the alleged constitutional violations. See Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013) (recognizing that “although the requirement of personal participation, including the question of supervisory liability, is a component of liability under § 1983 and Bivens, ” it is also incorporated “into our qualified-immunity analysis, where we ask whether a clearly established constitutional right has been violated”). The very limited interactions between Plaintiff and Ms. Nira-who, as a non-provider is alleged here to have interacted with him only by means of written grievances-do not plausibly establish the necessary “affirmative link” between “the alleged constitutional violation and [her] participation, control, direction, or failure to supervise.” Pittman, 2023 WL 6564910, at *2. Specifically, the non-conclusory facts alleged by Mr. McGee do not plausibly indicate that Ms. Nira had the authority to decide that his aneurysm constituted a medical emergency requiring immediate surgery or to compel Mr. McGee's own medical provider to do more to adhere to the orders of an outside neurologist or cardiologist. See SAC at 40 (directing McGee to “kite [his] provider” for follow up concerning the neurologist's orders). For this reason too, the court finds that Ms. Nira is entitled to qualified immunity.
As with Ms. Kautz, Mr. McGee similarly has not satisfied his burden to overcome Ms. Nira's defense of qualified immunity. The court therefore respectfully RECOMMENDS that the Eighth Amendment claim against her be DISMISSED with prejudice.
Dr. Jerome Long. This claim fails because Mr. McGee raises but a single allegation about Dr. Long: that he failed to review Mr. McGee's medical file from Denver Health. SAC at 25 ¶ 47. Mr. McGee does not allege, however, how the failure to review his information constitutes deliberate indifference. He does not allege, for instance, that Dr. Long deliberately failed to review the file, or deliberately failed to provide or authorize treatment for Mr. McGee. The court therefore RECOMMENDS that the claim be DISMISSED without prejudice.
As noted above, while Dr. Long has not been served or appeared in this case, the paucity of well-pleaded facts concerning his conduct make it “patently obvious” that Plaintiff cannot prevail on this claim. Andrews, 483 F.3d at 1074 n.2.
b. Eighth Amendment Official-Capacity Claims
Construed liberally, Mr. McGee's Complaint can be read to raise a municipal liability claim (a “Monell claim”) against the CDOC Defendants in their official capacities for violation of his Eighth Amendment rights. SAC at 25 ¶ 48 Katz acted “in her individual and official capacity concerning said emergency”); id. ¶ 49 (describing Nira as “acting in her official capacity as a HSA when she made aware of said emergency”). The CDOC Defendants acknowledge that, with respect to the deliberate-indifference claims, Plaintiff sues them in both their individual- and official-capacities. See ECF No. 37 at 2.
Mr. McGee does not raise any official-capacity claim based on an alleged violation of the First Amendment.
“An official capacity claim against a government officer is really a claim against the government that employs that officer.” Strepka v. Miller, 28 Fed.Appx. 823, 828 (10th Cir. 2001); see also Kentucky v. Graham, 473 U.S. at 165-66 (official capacity claim is “to be treated as a suit against the entity”). Consequently, Mr. McGee's official-capacity Eighth Amendment claims against Ms. Nira and Ms. Kautz are claims against the Colorado Department of Corrections, which is an arm of the state. Dodge v. Shoemaker, 695 F.Supp.2d 1127, 1134 (D. Colo. 2010) (CDOC is an arm of the state and entitled to Eleventh Amendment immunity). The Eleventh Amendment, however, “has been interpreted to bar suits against states and state agencies for money damages in federal court.” TarrantReg'l Water Dist. v. Sevenoaks, 545 F.3d 906, 911 (10th Cir. 2008). Thus, to the extent Mr. McGee seeks money damages from Ms. Nira and Ms. Kautz in their official capacities, those claims are barred by the Eleventh Amendment. However, § 1983 claims for prospective injunctive relief against state officials are not. Kentucky v. Graham, 473 U.S. at 167 n.14. This court therefore evaluates Plaintiffs Complaint as attempting to raise the latter type of municipal-liability claim.
Government entities can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694.
A government entity is not liable merely because its employees may have caused injury. See Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (citing Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). “In order to state a claim for municipal liability under § 1983 for the actions of a municipal employee, a party must allege sufficient facts to demonstrate that it is plausible ‘(1) that a municipal employee committed a constitutional violation; and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation.'” Erickson v. City of Lakewood, 489 F.Supp.3d 1192, 1205 (D. Colo. 2020) (quoting Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)). The plaintiff also must allege that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013); see also Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (“The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.”). “Thus, in order to state a claim under § 1983 for deliberate indifference based on a policy or practice, plaintiff must allege ‘(1) official policy or custom, (2) causation, and (3) state of mind.'” Erickson, 489 F.Supp.3d at 1205 (quoting Schneider, 717 F.3d at 769).
Here, the court agrees with the CDOC Defendants that Mr. McGee has not alleged that either of them committed a constitutional violation; this finding necessarily negates Mr. McGee's ability to allege a municipal liability claim. See Erickson, 489 F.Supp.3d at 1205. Moreover, Mr. McGee has not plausibly alleged that any of the actions of which he complains- even if they did amount to a deprivation of constitutional magnitude-were motivated by some policy or custom of the CDOC. See id. In addition to failing to adequately plead the existence of a constitutional violation and the existence of an official policy or custom, the Complaint also is lacking in facts sufficient to establish that any CDOC official acted “with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769.
The court thus finds that McGee has failed to plead a Monell claim based on a deliberate-indifference-to-medical-needs theory and therefore respectfully RECOMMENDS that his official-capacity claims be DISMISSED. However, in contrast to the individual-capacity claims subject to dismissal on qualified-immunity grounds, the court recommends that the dismissal of the Monell claim be without prejudice for failure to state a claim. See Gee, 627 F.3d at 1186. At this point, with respect to a Monell claim for prospective injunctive relief concerning Mr. McGee's current place of confinement at Sterling, the court cannot determine from the four corners of the SAC that such a claim is necessarily futile.
B. First Amendment Claims
The court draws from the Complaint that Mr. McGee is attempting to plead that his First Amendment rights have been violated in three ways: (1) that the grievance procedures at both BCCF and Sterling are constitutionally deficient; (2) that his access to the law library at Sterling is inadequate; and (3) that he was transferred to Sterling in retaliation for filing grievances. See SAC at 9-11; id. at ¶ 46. The court finds that Plaintiff's allegations are insufficient to state a plausible claim for relief on any of these grounds.
First, with regard to any alleged defects in the grievance procedure at either institution, “[t]]he Tenth Circuit has repeatedly indicated that there is no constitutional right to use the prison grievance procedure.” Guzman Loera v. True, No. 21-cv-02794-NYW-MEH, 2023 WL 2528629, at *13 (D. Colo. Mar. 15, 2023) (citing Green v. Corr. Corp. of Am., 401 Fed.Appx. 371, 375 n.4 (10th Cir. 2010), Soboroff v. Doe, 569 Fed.Appx. 606, 610 (10th Cir. 2014)). Added to that pleading defect is the fact that Mr. McGee has not alleged the requisite personal participation by any Defendant here in any constitutional violation-another fatal pleading omission, given that personal participation is an essential element of a civil rights action. See, e.g., Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Mr. McGee does not even mention any of the BCCF Defendants or Ms. Kautz in connection with any allegation concerning the use of the prison grievance procedure-or any other First Amendment claim-let alone plausibly establish by his allegations an “affirmative link” between the alleged constitutional violation and each individual defendant's participation. See, e.g., Pittman, 2023 WL 6564910, at *2. Ms. Nira is alleged to have improperly responded to one of Plaintiff's grievances, see SAC at 10 ¶ 5, but that also is insufficient to establish her personal participation. See also, e.g., Gallagher, 587 F.3d at 1069 (“denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983”). Nor does Mr. McGee plead facts plausibly showing that any alleged defects in the grievance process at either prison have prevented, frustrated or impeded him from accessing the courts, as his filing of this lawsuit demonstrates. Walters, 119 Fed.Appx. at 191 (“When the claim underlying the administrative grievance involves a constitutional right, the prisoner's right to petition the government for redress is the right of access to the courts, which is not compromised by the prison's refusal to entertain his grievance.”) (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
Second, with regard to Mr. McGee's assertion that he lacks access to books and computers in the law library at Sterling, the court finds that this claim also is insufficiently pleaded. To state a claim for denial of the right of access to courts with respect to a prison law library, prisoners must “allege more than that the prison library or legal access policies are ‘subpar in some theoretical sense.'” Brooks v. Colorado Dep't of Corr., 762 Fed.Appx. 551, 558 (10th Cir. 2019) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). Mr. McGee must “allege actual injury to his right to access the courts, that is, to allege facts showing how the allegedly deficient law library and challenged CDOC policies impaired his ability to pursue a nonfrivolous claim.” Id. (internal quotation marks omitted) (citing Lewis, 518 at 349, 351, 353 & n.3) (requiring that “the alleged shortcoming” actually hinder a prisoner's ‘efforts to pursue a legal claim' that is not frivolous”); Trujillo v. Williams, 465 F.3d 1210, 1226 (10th Cir. 2006) (holding prisoner must “show that any denial or delay of access to the court prejudiced him in pursuing litigation”) (internal quotation marks omitted).
Here, Mr. McGee has alleged no facts that plausibly demonstrate an actual, rather than theoretical, injury to his ability to bring this action-which, it is apparent, he has been able to pursue-or some other nonfrivolous claim. His speculation about future compromise to library access, see SAC at 11, is insufficient. See Ruppert v. New Mexico Dep't of Corr., 625 Fed.Appx. 820, 824 (10th Cir. 2015) (“The prisoner's allegations of actual injury must go beyond mere conclusions.”) (citing Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006) (conclusory allegations of injury do not suffice)). And he also has not alleged the personal participation of any Defendant here-including Ms. Nira or Ms. Kautz-in matters concerning the law library at Sterling.
The third component of Mr. McGee's First Amendment claim challenges his transfer to Sterling-rather than to the Freemont Correctional Facility, where he apparently would prefer to be housed-for reasons that he does not allege in his Complaint. SAC at 24 ¶ 44, 46. The court finds Plaintiff's pleading on this score insufficient to state a plausible claim for relief.
Certain circumstances may give rise to a plausible retaliatory transfer claim. The Tenth Circuit has recognized that, “while a prisoner enjoys no constitutional right to remain in a particular institution and generally is not entitled to due process protections prior to such a transfer, prison officials do not have the discretion to punish an inmate for exercising his first amendment rights by transferring him to a different institution.” Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990). To state a retaliatory transfer claim, the inmate's allegations (1) must identify constitutionally protected activity (such as the filing of specific grievances against a particular defendant; (2) describe a responsive action that would “chill a person of ordinary firmness from continuing to engage in that activity”; and (3) “recite facts indicating that the action ‘was substantially motivated as a response to [his] exercise of constitutionally protected conduct' (that Defendants were aware of his protected activity, that his protected activity complained of Defendants' actions, and that the transfer was in close temporal proximity to the protected activity).” Gee, 627 F.3d at 1189 (quoting Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007)).
In Gee, the prisoner alleged that he was transferred out of state to an “administrative maximum” prison where he was allegedly subjected to far greater security restrictions than he had previously been. See 627 F.3d at 1189. Similarly, in Fogle v. Pierson, 435 F.3d 1252 (10th Cir. 2006), a prisoner alleged that he was not only transferred to a new facility but was also “immediately placed in administrative segregation,” and remained in administrative segregation at three different prisons for three years, where he was denied access to several basic needs. Id. at 1257. In Abdulhaseeb v. Saffle, a prisoner alleged not only that he was transferred in retaliation for filing grievances but also that he was “told that he had ‘worn out his welcome' and that [the] warden . . . wanted him ‘gone yesterday.'” 65 Fed.Appx. 667, 673 (10th Cir. 2003).
In this case, Mr. McGee alleges that he was originally told he would be transferred from BCCF to Fremont Correctional Facility to better address his medical needs. But he was instead transferred to Sterling. It appears that Mr. McGee asserts only that the transfer to Sterling was retaliatory, not the original plan to transfer him to Fremont. There are at least two problems with this claim. First, Mr. McGee does not identify who made the decision to transfer him to Sterling, and he has not alleged that any Defendant had that responsibility. Once again, plausible allegations of personal participation are lacking.
Second, even if the SAC were clear concerning who made the decision to transfer Mr. McGee, he does not assert that his conditions of confinement are materially worse or more difficult in Sterling than they were in BCCF or would have been in Fremont. Indeed, he alleges no differences between these facilities. Therefore, his pleading does not plausibly allege the second and third elements for a retaliatory transfer claim against any Defendant.
In light of these pleading defects, the court respectfully RECOMMENDS that all First Amendment claims be dismissed. The court further recommends that the dismissal of all First Amendment claims against Ms. Nira and Ms. Kautz, who are entitled to qualified immunity, see Pahls, 718 F.3d at 1227, be with prejudice; that all claims concerning Plaintiff's use of the administrative grievance process against the BCCF Defendants also be dismissed with prejudice because amendment would be futile; that the law library/access-to-courts claim be dismissed without prejudice; and that the retaliatory transfer claims against the BCCF Defendants be dismissed without prejudice.
IV. Conclusion
For the foregoing reasons, the court respectfully RECOMMENDS as follows:
• That the CDOC Defendants' Motion to Dismiss (ECF No. 37) be GRANTED; that all individual-capacity claims against Defendants Nira and Kautz be DISMISSED WITH PREJUDICE; that the Eighth Amendment claim against Defendant Long be DISMISSED WITHOUT PREJUDICE; and that Plaintiff's official-capacity Eighth Amendment claim be DISMISSED WITHOUT PREJUDICE; • That the Motion to Dismiss filed by Defendants Chris Chavez, Steven Salazar, Clara Torrez, and Jeremy Romero (ECF No. 38), and the Motion to Dismiss filed by Defendants Angie Turner and Donald Trujillo (ECF no. 48) be GRANTED and that 41 all claims against them, as well as and Sergeant Dierga, be DISMISSED WITHOUT PREJUDICE, except the First Amendment claim asserting a constitutional right to use the prison grievance procedure, which the court recommends be DISMISSED WITH PREJUDICE. • The claim against Officer/Nurse Jimmy remains. This court will address service on this Defendant by separate order.