Opinion
Civil Action 20-cv-03478-WJM-STV
02-10-2022
ANDERSON STRAKER, Plaintiff, v. STANCIL, ROOT, MOORE, ANTHONY, TORRES, STRATTON, GALVAN, LINDGREN, AVALOS, and TWO UNKNOWN INDIVIDUALS, Defendants.[1]
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak, United States Magistrate Judge
This matter comes before the Court on Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (the “Motion”) [#37], which has been referred to this Court [#38]. The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully
RECOMMENDS that the Motion be GRANTED and that Plaintiff's Complaint [#1] be DISMISSED.
I. BACKGROUND
This lawsuit arises out of Plaintiff's incarceration by the Federal Bureau of Prisons (“FBP”) at the United States Penitentiary in Florence, Colorado (“USP Florence”). [#1] Plaintiff alleges that, while detained at USP Florence, he successfully overturned his life sentence(s). [Id. at 6] As a result, Plaintiff obtained “a significant reduction of his custody level” and, on or about August 6, 2019, Defendant Lieutenant Moore ordered that Plaintiff be removed from USP Florence's general population and placed in the Special Housing Unit (the “SHU”) pending transfer to a lower custody facility. [Id.] It was further determined that Plaintiff “posed a significant risk to the safe operations of the facility, based upon his ‘new' custody level” and thus he was given a single-man cell assignment in the SHU. [Id.]
After Plaintiff had been in the SHU for approximately 15 days, Defendant Correctional Officers Torres, Stratton, and Galvan changed Plaintiff's cell assignment and ordered him to move into a cell with an inmate “from DC” with a higher custody level who was being disciplined for threatening a female officer at USP Florence (the “DC Inmate”). [##1 at 6; 1-2 at 6] Prior to being moved into the cell with the DC Inmate, Plaintiff informed Officers Torres, Stratton, and Galvan “of the situation” and requested to speak with a higher ranking officer. [#1 at 6] According to the grievance Plaintiff filed in connection with the incident, Plaintiff “made known to the officers that [Plaintiff was] fearful for [his] life” because he was “at odd[s] with D.C. inmates” as Plaintiff “had previously been assaulted and stabbed by multiple other inmates from the D.C. area while being housed at USP-Allenwood.” [#1-2 at 5-6, 12 (capitalization omitted)] Plaintiff's request was denied and he was forced to move into the cell with the DC Inmate. [#1 at 6; #1-2 at 7]
At an unspecified time thereafter, the DC Inmate assaulted Plaintiff, resulting in Plaintiff being knocked unconscious, suffering a bloody nose and mouth, several contusions, and a medium-sized knot above Plaintiff's temple. [#1 at 6] After the assault, Plaintiff made “numerous request[s]” for medical assistance, but Defendant Lindgren- the medical supervisor assigned to conduct walkthroughs in the SHU-”failed to administer medical care in a sufficient [manner] to [Plaintiff].” [Id. at 5, 6]
Plaintiff contends that it took Defendant Lieutenant Anthony in Special Investigative Services (“SIS”) four days to investigate the matter after the assault and issue a directive for Plaintiff to be returned to a single-cell assignment. [Id. at 6] Plaintiff contends that officers “came rushing to [his] cell door saying ‘Lieutenant' Anthony [was] going crazy about [Plaintiff] being moved out of [his] assign[ed] single man cell.” [#1-2 at 6] Plaintiff was then moved back into a single cell in the SHU. [Id.] Plaintiff alleges that he “was prey[ed] on throughout [his] stay” in the cell with the DC Inmate. [Id. at 10] Plaintiff alleges that he asked the officers who moved him back into the single cell to see medical, but that they “side step[ped]” and “disregarded” the issue. [Id. at 6, 10]
Thereafter, Plaintiff requested assistance from Defendant Warden Stancil, several assistant wardens, and Defendant Unit Manager Avalos to determine why he was removed from USP Florence's general population and why it was taking so long for Plaintiff to be transferred to the lower level facility. [#1 at 6] Plaintiff contends that these individuals demonstrated “extreme indifference” and “blew [Plaintiff off] time after time.” [Id.] Plaintiff further alleges that, after the assault, he “made various attempts to reach out to [his] assigned Unit Manager-Ms. Avalos, via the prison's correspondence system, and occasions [sic] face-to-face, when [Ms. Avalos] would do her assigned walk-thr[ough] the SHU; and, [Ms. Avalos] refused to acknowledge [Plaintiff's] attempts and/or offer any assistance.” [Id. at 10]
Plaintiff alleges that he was treated differently from another inmate, Khary Ancrum, who was housed at USP Florence at the same time and was “similarly situated” to Plaintiff. [Id. at 6-7] According to Plaintiff, Mr. Ancrum had his life sentence “significantly reduced” and thereby obtained “a significant drop in his custody level.” [Id. at 6] Despite this, Mr. Ancrum was permitted to remain in the general population at USP Florence while awaiting transfer to a lower custody facility, whereas Plaintiff had been removed from the general population and placed in the SHU. [Id. at 6-7]
At an unspecified future date, “after a change of the warden, ” Plaintiff was transferred to FCI Florence-a medium security facility rather than a low custody facility- even though Plaintiff “possessed minimum custody points.” [Id. at 7] Plaintiff contends that, although he was facing deportation at the time, “potential removal from the country [did] not exclude him from being housed at [a] low custody facility.” [Id.] Plaintiff contends that, after his transfer to FCI Florence, he asked his case manager, Mr. Smith, why he was being housed on a disciplinary yard-which Plaintiff contends is violent and “constantly locked-down”-given his low custody level, and Mr. Smith responded, “ask[ ] your Unit Manager Avalos, she f*****-up your transfer to please her bosses.” [Id. at 10-11]
Plaintiff contends that, while he was detained at FCI Florence, which is in close proximity to USP Florence, Ms. Avalos made several attempts to speak with Plaintiff about this matter, but he refused to speak with her. [Id. at 10] On July 9, 2020, Plaintiff contends that Ms. Avalos approached Plaintiff in front of the FCI Florence library/educational building and requested to speak with Plaintiff. [Id.] Ms. Avalos told Plaintiff that, after he returned from court after overturning his life sentence, Ms. Avalos told her supervisors that Plaintiff should be permitted to remain in general population at USP Florence until his transfer to a lower custody facility, because he had never been a problem, was report free, and was involved in programming. [Id.] Ms. Avalos allegedly told Plaintiff that, at that time, she discovered that “officials at USP-Florence were targeting [Plaintiff] because of civil litigation [Plaintiff] had filed and was pending against officials at USP-Allenwood.” [Id.] Ms. Avalos allegedly also told Plaintiff that she “had tried to stop [Plaintiff's] hardship faced in [the SHU at USP Florence].” [Id.] According to Plaintiff, Ms. Avalos further told him that she had previously been placed in a bad situation where she had attempted to separate a gay inmate from the predator inmate with whom he had been housed. [Id.] However, the officers to whom Ms. Avalos allegedly made the separation request-including Mr. Smith-refused and then placed the blame on Ms. Avalos when the predator inmate raped the gay inmate. [Id.] With his Complaint, Plaintiff included an affidavit from another inmate at FCI Florence, who testified that he overheard Plaintiff's conversation with Ms. Avalos on July 9, 2020. [#1-2 at 1] The inmate further testified that he heard Ms. Avalos tell Plaintiff that she did not have anything to do with Plaintiff being forced into the SHU and getting hurt but that instead it “was the action of the Warden, Captain and others (BOP employees) at USP-Florence, who were intentionally targeting [Plaintiff] and trying to get [Plaintiff] to end his legal filing against prison officials at USP-Allenwood.” [Id.]
On November 23, 2020, Plaintiff, proceeding pro se, filed the Complaint asserting claims pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [#1] Although the Complaint includes only one claim, it states that Defendants “violated [Plaintiff's] constitutional right to due process of law; and, the prohibition against the use of cruel and unusual punishment pursuant to both the Fifth and Eighth Amendments of the U.S. Constitution.” [Id. at 6] On June 11, 2021, Defendants filed the instant Motion seeking to dismiss all of Plaintiff's claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [#37] On September 2, 2021, Plaintiff filed Plaintiff's Reply to Defendant's Motion (the “Response”) [#73], and Defendants then filed a reply in support of the Motion [#79].
II. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath or conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
B. Pro Se Filings
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
Through the Motion, Defendants seek to dismiss all of Plaintiff's claims pursuant to Rule 12(b)(6). [#37] Defendants construe the claims asserted by Plaintiff in the Complaint as follows:
Plaintiff appears to bring three claims against nine defendants. He first contends that [Defendants] Moore, Root, Stancil, and Avalos conspired to transfer him from the general population to the SHU in retaliation for a lawsuit he had filed against prison officials in another institution. He next alleges that [Defendants] Torres, Stratton, Galvan, and Anthony failed to protect him (1) by directing him to move into a shared cell with [the DC Inmate] ([Defendants] Torres, Stratton, and Galvan), and (2) by failing to timely investigate and change his cell assignment ([Defendant] Anthony). Finally, he asserts that [Defendant] Lindgren did not provide “sufficient” medical care after the purported assault.[Id. at 2 (citations and footnotes omitted)] Defendants argue that Plaintiff's allegations in the Complaint are insufficient to plausibly allege any of these claims. [Id. at 8-15] In his Response, Plaintiff does not dispute Defendants' characterization of his claims or substantively address any additional or different claims asserted in the Complaint. [#73] To the contrary, Plaintiff's Response focuses entirely on his claims for retaliation and failure to protect. [See Id. at 3-9] Accordingly, the Court construes the Complaint to assert the three claims identified by Defendants-i.e., First Amendment retaliation, Eighth Amendment failure to protect, and Eighth Amendment deliberate indifference to serious medical needs-and addresses each in turn.
A. First Amendment Retaliation
The First Amendment prohibits prison officials from retaliating against inmates, including pretrial detainees, for exercising their constitutional rights. Poole v. Cnty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (“Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” (quotation omitted)), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). To state a First Amendment retaliation claim against a government official, a plaintiff must plausibly allege three elements:
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). The Tenth Circuit has further explained:
To make a prisoner's claim of retaliation by a prison official plausible, it must be supported by (1) specific facts about the adverse action taken against the prisoner to make it plausible that the action was not motivated by legitimate grounds and (2) specific facts showing why the particular official would be motivated to improperly harm the prisoner.Guy v. Lampert, 748 Fed.Appx. 178, 181 (10th Cir. 2018).
In the Complaint, Plaintiff alleges that, after he had been transferred from USP Florence to FCI Florence, Ms. Avalos told him that “prison officials at USP-Florence were targeting [Plaintiff] because of civil litigation [Plaintiff] had filed and was pending against officials at USP-Allenwood” and implies that these unspecified “prison officials” thus ordered him to be housed in the SHU pending transfer to a lower custody facility. [#1 at 10]
As an initial matter, Plaintiff fails to sufficiently allege the personal participation of the named defendants. The Tenth Circuit has made clear that “[l]iability under . . . Bivens requires personal involvement” and thus the plaintiff “must establish that each defendant” participated in the constitutional violation. Pahls v. Thomas, 718 F.3d 1210, 1231 (10th Cir. 2013) (emphasis in original). Here, Plaintiff alleges only vaguely that “prison officials at USP-Florence” were responsible for the alleged retaliation. [#1 at 10] This vague allegation clearly is insufficient to plausibly allege the personal participation of “each defendant.” Pahls, 718 F.3d at 1231.
Moreover, Plaintiff fails to “allege specific facts” establishing that “but for the retaliatory motive, the incidents to which he refers . . . would not have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (emphasis and quotations omitted); see also Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (“Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.” (quotation omitted)). Here, Plaintiff-based upon an alleged conversation with Ms. Avalos-merely alleges in a vague, conclusory manner that prison officials were “targeting [Plaintiff] because of civil litigation [Plaintiff] had filed and was pending against officials at USP-Allenwood.” [#1 at 10] As Defendants point out in the Motion, “Plaintiff does not allege any facts plausibly showing that any Defendant was actually aware of Plaintiff's litigation [against officials at USP-Allenwood], what exactly that particular Defendant knew about it, or why that individual Defendant's actions demonstrate[ ] his or her motivation to retaliate against Plaintiff for filing a case against officials in an institution far-removed from USP Florence.” [#37 at 10] Nor does Plaintiff establish any temporal connection between the lawsuit against officials at USP-Allenwood and his placement in the SHU at USP Florence. [See #1] In his Response, Plaintiff contends that “Defendants' denial of knowledge [of the lawsuit against the USP-Allenwood officials] does not have merit, ” because “it would have been part of his prison transfer paperwork when they placed him [in] the [SHU].” [#73 at 9] Plaintiff, however, does not allege in the Complaint that the lawsuit was part of his “prison transfer paperwork” or that Defendants had reviewed that paperwork and Plaintiff may not amend the Complaint through his Response. See Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015). Regardless, Defendants' knowledge of the lawsuit against officials at USP-Allenwood alone is insufficient to plausibly allege that Defendants were motivated to transfer Plaintiff to the SHU based upon that lawsuit.
Plaintiff's retaliation allegations are particularly insufficient to establish a retaliatory motive given that Plaintiff himself has alleged in the Complaint that there was a legitimate penological reason for why he was removed from the general population and placed in a single-cell in the SHU. More specifically, Plaintiff alleges that “[i]t was decided that [Plaintiff] posed a significant risk to the safe operations of the facility, based upon his ‘new' custody level” and that Plaintiff thus “was placed in a single man cell assignment for safety reason(s).” [#1 at 6; see also Id. at 10; #1-2 at 2] Plaintiff provides no facts to support a finding that this alleged reason for Plaintiff's placement in the SHU was pretextual. Plaintiff has therefore not met his burden of pleading that “but for the retaliatory motive, the incidents to which he refers . . . would not have taken place.” Peterson, 149 F.3d at 1144.
Accordingly, the Court respectfully RECOMMENDS that Plaintiff's First Amendment retaliation claim be DISMISSED.
B. Failure to Protect
The Eighth Amendment protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). As part of this obligation to take reasonable measures to guarantee an inmate's safety, “prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quotations omitted). “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Id. (quotations omitted).
That said, not every instance of inmate-on-inmate violence “translates into constitutional liability for prison officials responsible for the victim's safety.” Id. at 834. Instead, to establish an Eighth Amendment violation, the victim must establish two requirements. First, there is an objective component in that the deprivation must be “sufficiently serious” such that the prisoner is denied “the minimal civilized measure of life's necessities.” Id. (quotations omitted). “In cases involving a failure to prevent harm, this means that the prisoner must show that the conditions of his incarceration present an objective ‘substantial risk of serious harm.'” Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008) (quoting Farmer, 511 U.S. at 833). Second, there is a subjective requirement that the prison official have a “deliberate indifference” to the inmate's health or safety. Farmer, 511 U.S. at 839. This deliberate indifference is akin to recklessness as used in the criminal law. See Id. at 839; Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (“The subjective component is akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm.” (quotations omitted)). “The subjective component of the deliberate indifference test requires that, before liability can be imposed, a prison 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.'” Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998)).
Here, Plaintiff alleges that Defendants failed to protect him by: (1) transferring him from a single-person cell in the SHU into a cell shared with the DC Inmate and (2) failing to timely investigate and change his cell assignment after he was assaulted by the DC Inmate. [#1] The Court considers each in turn.
1. Placement in Cell with the DC Inmate
Plaintiff alleges that, prior to Officers Torres, Stratton, and Galvan moving Plaintiff from his single cell into a cell with the DC Inmate, Plaintiff pleaded with them that he would be “fearful for [his] life” if he was moved into the cell with the DC Inmate because he was “at odds with DC inmates” as he “had previously been assaulted and stabbed by multiple other inmates from the D.C. area while being housed at USP-Allenwood.” [#1 at 6; #1-2 at 5, 6, 7, 12 (capitalization omitted)] Despite Plaintiff's protest, he was forced to move into the cell with the DC Inmate. [#1 at 6; #1-2 at 7]
Defendants do not specifically argue that Plaintiff failed to satisfy the objective component of the deliberate indifference standard but instead focus their argument on the subjective component. [#37 at 12-13] For purposes of the instant Motion, the Court thus assumes without deciding that Plaintiff's allegations are sufficient to satisfy the objective component. With regard to the subjective component, Defendants argue that “Plaintiff has failed to allege that [Officers] Torres, Stratton, and Galvan were aware of facts supporting an interference [sic] that Plaintiff faced a substantial risk of serious harm and actually drew that inference.” [#37 at 12-13] The Court agrees. Although Plaintiff alleges that he notified Officers Torres, Stratton, and Galvan about the potential danger he faced by moving into a cell with the DC inmate given that he had previously been assaulted and stabbed by multiple other inmates from the D.C. area while being housed at USP-Allenwood, there are no factual allegations to support a finding that Officers Torres, Stratton, and Galvan were aware of facts from which the inference could be drawn that a substantial risk of serious harm actually existed or that Officers Torres, Stratton, and Galvan actually drew that inference. There is no allegation, for example, that Officers Torres, Stratton, and Galvan were independently aware of: (1) the altercation at USP-Allenwood, (2) any connection-or communication channel-between the inmates who assaulted Plaintiff at USP-Allenwood and the DC Inmate at USP Florence, or (3) any altercations Plaintiff had with inmates at USP Florence prior to transferring him into the cell with the DC Inmate. Although Plaintiff's self-reported fear may be sufficient to allege that Officers Torres, Stratton, and Galvan had some subjective awareness of potential harm to Plaintiff, “[s]ubjective awareness of only some risk of harm to a prisoner is insufficient for a deliberate-indifference claim.” Turner v. Oklahoma Cty. Bd. of Cty. Comm'rs, 804 Fed.Appx. 921, 926 (10th Cir. 2020) (quoting Marbury v. Warden, 936 F.3d 1227, 1238 (11th Cir. 2019)). “Rather, ‘officials must possess enough details about a threat to enable them to conclude that it presents a strong likelihood of injury, not a mere possibility.'” Id. (quoting Marbury, 936 F.3d at 1236). Here, Plaintiff has not alleged that Officers Torres, Stratton, and Galvan were aware of any facts about the alleged threat posed by the DC Inmate that would enable them to conclude that Plaintiff had a well-founded fear and faced a substantial risk of serious harm. “Successful deliberate-indifference claims . . . generally require some further reason-beyond the plaintiff having informed the defendant officers of the threat-that a prison official could have concluded that a particular threat evidenced a substantial threat, rather than the mere possibility, of serious harm.” Marbury, 936 F.3d at 1236; see also Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (finding inadequate evidence of deliberate indifference where plaintiff was returned to the general population after he expressed concern about his safety because “friends of his enemies remained in the general population”).
At most, Plaintiff has alleged that Officers Torres, Stratton, and Galvan were negligent in disregarding the risk Plaintiff identified. Indeed, in the grievance forms Plaintiff submitted after the incident, he sought “compensation for the negligence [of] failing to protect” [#1-2 at 8] and contended that Officers Torres, Stratton, and Galvan “acted with neglect and/or extreme indifference with regard to his safety.” [#1-2 at 12 (capitalization omitted)] “The mere showing of simple, or even heightened, negligence does not establish that [Defendants] were subjectively aware of the risk.” Verdecia, 327 F.3d at 1176.
Accordingly, the Court finds that Plaintiff has not plausibly alleged that Officers Torres, Stratton, and Galvan were aware of facts from which the inference could be drawn that a substantial risk of serious harm existed if Plaintiff was placed in the cell with the DC Inmate, or that they drew that inference. The Court thus respectfully RECOMMENDS that Plaintiff's failure to protect claim based upon his placement in the cell with the DC Inmate be DISMISSED.
2. Failure to Remove Plaintiff from Cell Following Assault
Plaintiff also alleges that “[i]t took SIS Lt. Anthony four days to investigate the matter prior [sic] to the assault, and issue a directive for [Plaintiff] to be returned back to a single cell assignment.” [#1 at 6] Plaintiff alleges that he “was prey[ed] on throughout [his] stay” in the cell with the DC Inmate. [#1-2 at 10] As noted above, Defendants have interpreted these sparse allegations as attempting to assert a claim against Lieutenant Anthony for failure to protect “by failing to timely investigate and change [Plaintiff's] cell assignment.” [#37 at 2] To the extent Plaintiff does seek to assert a failure to protect claim against Lieutenant Anthony, the Court finds Plaintiff's allegations insufficient to plausibly allege the subjective component of deliberate indifference.
As noted above, to plausibly allege the subjective component, Plaintiff must allege that Lieutenant Anthony was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed if Plaintiff remained in the cell with the DC Inmate and that Lieutenant Anthony also drew that inference. Verdecia, 327 F.3d at 1175. Although Plaintiff alleges that he was subjected to continued abuse from the DC Inmate throughout Lieutenant Anthony's four-day investigation into the initial assault, he does not allege that Lieutenant Anthony was aware either: (1) that Plaintiff remained in the cell or (2) that Plaintiff was subjected to continuing abuse during that period. To the contrary, Plaintiff alleges that the officers who ultimately moved him back into a single cell, “came rushing to [his] cell door saying ‘Lieutenant' Anthony [was] going crazy about [Plaintiff] being moved out of [his] assign[ed] single man cell.” [#1-2 at 6] Such allegation indicates that Lieutenant Anthony was unaware up to that point that Plaintiff remained in the cell with the DC Inmate and that, upon learning that Plaintiff remained in the cell, sent officers “rushing” to move him out of the cell. [Id.] Plaintiff's allegations thus do not support a finding that Lieutenant Anthony acted with deliberate indifference in failing to remove Plaintiff from the shared cell with the DC Inmate following the initial assault.
At most, Plaintiff has alleged that Lieutenant Anthony was negligent in not making sure that Plaintiff had been removed from the shared cell with the DC Inmate. As explained above, “[t]he mere showing of simple, or even heightened, negligence does not establish that [Lieutenant Anthony] w[as] subjectively aware of the risk.” Verdecia, 327 F.3d at 1176.
Accordingly, the Court finds that Plaintiff has not plausibly alleged that Lieutenant Anthony either was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed or that he drew that inference. The Court thus respectfully RECOMMENDS that Plaintiff's failure to protect claim based upon Lieutenant Anthony allegedly waiting four days to remove Plaintiff from the cell with the DC Inmate be DISMISSED.
C. Deliberate Indifferent to Serious Medical Needs
A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference” in the context of medical needs-as in the failure to protect context-involves both an objective and subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component is met if the deprivation of medical care is “sufficiently serious.” Id. A medical need is sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). Here, Plaintiff alleges that, as a result of the assault by the DC Inmate, he was knocked unconscious and suffered a bloody nose and mouth, several contusions, and a medium-sized knot above his temple [#1 at 6] The Court finds these allegations sufficient to satisfy the objective component of the deliberate indifference inquiry.
The subjective component of a deliberate indifference claim “is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock v. Colorado, 218 F.3d 1205, 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self, 439 F.3d at 1231 (quoting Farmer, 511 U.S. at 837, 839). In the prison medical context, “deliberate indifference is present when prison officials intentionally deny or delay access to necessary medical treatment for non-medical reasons.” Hammond v. Crum, No. 16-CV-0069-GPG, 2016 WL 153224, at *2 (D. Colo. Jan. 13, 2016) (citing Estelle, 429 U.S. at 104-05).
Here, Plaintiff alleges only that, after the assault, Plaintiff made “numerous request[s]” for medical assistance, but Ms. Lindgren “failed to administer medical care in a sufficient [manner] to [Plaintiff].” [#1 at 5, 6] Plaintiff's single, vague allegation regarding Ms. Lindgren is insufficient to plausibly allege that she acted with deliberate indifference. Notably, Plaintiff does not allege that Ms. Lindgren failed to provide any medical care in response to his injuries, but only that she failed to provide medical care “in a sufficient [manner].” [Id.] Plaintiff, however, offers no factual allegations to explain why the care provided was inadequate; nor does he allege any facts to support a finding that Ms. Lindgren knew or should have known that the care provided was insufficient. Although Plaintiff apparently disagreed with the level of treatment Ms. Lindgren provided, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999). At most, Plaintiff has alleged that Ms. Lindgren's provision of medical care in response to his injuries was negligent. “A negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Id.
Accordingly, the Court respectfully RECOMMENDS that Plaintiff's Eighth Amendment claim for deliberate indifference to a serious medical condition be DISMISSED.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff's allegations in the Complaint are insufficient to plausibly plead any violation of his constitutional rights.This Court thus respectfully RECOMMENDS that the Motion [#37] be GRANTED and that Plaintiff's Complaint [#1] be DISMISSED.