Opinion
Case No. 21-CV-0139-SWS
2022-01-31
Chester L. BIRD, Ryan A. Brown, and Richard B. Dague, Plaintiffs, v. Melanie MARTINEZ-ELLIS, RN, Health Services Administrator, Corizon Health, Inc., and Michael Pacheco, Warden, Wyoming Medium Correctional Institution, in their individual capacities, Defendants.
Chester L. Bird, Torrington, WY, Pro Se. Ryan A. Brown, Torrington, WY, Pro Se. Richard B. Dauge, Torrington, WY, Pro Se. Scott E. Ortiz, Erica Rachel Day, Williams Porter Day & Neville PC, Casper, WY, for Defendants.
Chester L. Bird, Torrington, WY, Pro Se.
Ryan A. Brown, Torrington, WY, Pro Se.
Richard B. Dauge, Torrington, WY, Pro Se.
Scott E. Ortiz, Erica Rachel Day, Williams Porter Day & Neville PC, Casper, WY, for Defendants.
ORDER GRANTING MOTION TO DISMISS
Scott W. Skavdahl, United States District Judge
This matter comes before the Court on the Defendants’ Motion to Dismiss Amended Complaint (ECF No. 11) pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs’ claims arise out of them having received the Janssen COVID-19 Vaccine when they allegedly consented only to receiving the Pfizer or Moderna vaccine. The Court, having considered the motion and Plaintiffs’ response thereto, and being otherwise fully advised, FINDS Plaintiffs’ claims should be dismissed.
AMENDED COMPLAINT ALLEGATIONS
1. Plaintiffs are incarcerated at the Wyoming Medium Correctional Institution ("WMCI") in Goshen County, Wyoming. (Am. Compl. ¶¶ 6-8, ECF No. 10.) Defendant Michael Pacheco is WMIC's Warden. Defendant Melanie Martinez-Ellis is a registered nurse and, at the time of the events involved in this case, was employed by Corizon Health, Inc. ("Corizon") as the Health Services Administrator at the WMCI. (Id. ¶ 9.)
2. Following declaration of a national emergency regarding the COVID-19 pandemic in March 2020, Wyoming Department of Corrections ("WDOC") administrators, including Warden Pacheco, "began taking action to protect the prisoners, including the Plaintiffs, and staff at the WMCI from the COVID-19 virus." (Id. ¶ 17.) In addition to making changes to the normal routines and operations at WMCI, prison administrators posted "critical information on the COVID-19 virus within the prisoner housing units" which included "dozens of written memorandums and other printed documents." (Id. ¶¶ 18-19.) "[S]ome of the written memorandums and other critical information on the COVID-19 virus were also published on the prisoner computer network and the WMCI facility television channel." (Id. ¶ 20.)
3. Three COVID-19 vaccines ultimately received emergency use authorization by the Food and Drug Administration ("FDA") in the United States. (Am. Compl. ¶ 21.) In mid-December 2020 the "Pfizer Vaccine" was authorized, followed shortly thereafter by the "Moderna Vaccine." (Id. ¶ 22.) In late February 2021, the "Janssen Vaccine" was also authorized. (Id. )
4. On January 13, 2021, Plaintiff Bird submitted a Health Service Request ("HSR") to Corizon staff at the WMCI requesting information on the COVID vaccine. (Id. ¶ 23.) Apparently in response to Mr. Bird's request, Corizon's Regional Director of Nursing, Jayleen Cunningham, RN, BSN wrote:
We are currently working with County health departments to receive vaccines. These are being released as they work down the priority lists. Once vaccines have been received and we know which one will be available we will provide the information sheets.
(Id. ¶ 24.) Soon after the Pfizer and Moderna vaccines received emergency authorization, information sheets for both vaccines were "physically posted in the prisoner housing units at the WMCI." (Id. ¶ 25.)
5. In early February 2021, WMCI began vaccinating its "high risk" prisoners and staff with the Moderna Vaccine. (Am. Compl. ¶ 26.) On March 10, 2021, Plaintiffs each signed a document labeled "COVID-19 Vaccine 2020-2021 Patient Consent or Declination" ("Consent Form"). (Id. ¶ 27; ECF Nos. 15-2, 15-3, 15-4.) Plaintiffs allege they "consented to receive either the Pfizer or Moderna vaccine, such being the only two COVID-19 vaccines specifically identified on the Consent Form." (Id. ¶ 28.) Plaintiffs allege there was "absolutely no mention of the Janssen Vaccine on the Consent Form signed by the Plaintiffs." (Id. ¶ 29.) Plaintiffs further allege that, at Warden Pacheco's direction, their respective Consent Forms were delivered to them and retrieved minutes later by nonmedical WMCI staff. (Id. ¶ 31-32.)
Although not attached to their complaint, Plaintiffs attached their respective Consent Forms to their brief in response to the present motion to dismiss. "In addition to the complaint, the district court may consider documents referred to in the complaint [when deciding a motion to dismiss] if the documents are central to the plaintiff's claim and the parties do not dispute the documents’ authenticity." Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 (10th Cir. 2002).
6. Plaintiffs allege that, at the time they signed their respective Consent Forms, they were "acutely aware" there had been minimal side effects associated with the Moderna Vaccine given to the high risk WMCI prisoners and staff. (Am. Compl. ¶ 33.)
7. On March 19, 2021, "Plaintiffs were each injected by Ms. Martinez with what they were led to believe was either the Pfizer or Moderna vaccine." (Id. ¶ 34.) Plaintiffs allege they "presumed they were receiving either the Pfizer or Moderna vaccine because they were the only two vaccines specifically identified on the Consent Form they had signed on March 10, 2021, and because they had not been otherwise advised." (Id. ¶ 35.) However, on March 22, 2021, Plaintiffs allegedly became aware they had instead received the Janssen Vaccine. (Id. ¶ 36.) On that day a document labeled "Patient Information Fact Sheet Janssen COVID-19 Vaccine" ("Janssen Fact Sheet") was made available to the general population at the WMCI, including Plaintiffs, by being placed in the prisoner housing units. (Id. ¶ 37.) Plaintiffs allege this posting was the first they became aware they had actually been injected with the Janssen Vaccine. (Id. ¶ 38.)
The Plaintiffs’ Consent Forms suggest they received the Janssen Vaccine on March 31, 2021. (See "Injection Information" at bottom of Consent Forms, ECF Nos. 15-2, 15-3, 15-4.)
8. The Janssen Fact Sheet states: "Before the vaccine is given, a healthcare professional will review the Janssen COVID-19 Vaccine consent form with every patient to ensure it can be safely given." (Am. Compl. ¶ 39; Janssen COVID-19 Fact Sheet, ECF No. 15-1.) Plaintiffs allege WDOC did not have the Janssen Fact Sheet on or about March 18, 2021 when the Janssen Vaccine was delivered to WMCI for distribution to prisoners. (Id. ¶¶ 40-41.) Thus, Plaintiffs allege, "at the time they were injected by Ms. Martinez, [they] could not possibly have had any knowledge that the Janssen Vaccine was being used and quite properly presumed that they were actually being injected with either the Pfizer or Moderna vaccine because they were the only two vaccines specifically identified on the Consent Form they had signed on March 10, 2021, and because they had not been advised otherwise." (Id. ¶ 42.)
Although not attached to their complaint, Plaintiffs also attached the Janssen Fact Sheet to their brief in response to the present motion to dismiss.
9. Plaintiffs ultimately received COVID-19 vaccination cards which confirmed they were injected with the Janssen Vaccine. (Am. Compl. ¶ 49.) Plaintiffs’ Consent Forms, which they allegedly later requested and received, also confirm they were given the Janssen Vaccine. (Id. ¶ 50; ECF Nos. 15-2, 15-3, 15-4.)
10. WDOC Policy and Procedure #4.316 addresses "Informed Consent and Right to Refuse Treatment." (Am. Compl. ¶¶ 53-54; see also Pl.’s Resp. Br. Ex. 5, ECF No. 15-5.) The policy states its purpose "is to establish uniform guidelines by which inmates incarcerated in [WDOC] facilities are afforded informed consent on health care procedures and given the right to refuse medical treatment." (Id. ) For purposes of the policy, "informed consent" is defined as: "The agreement by a patient to a treatment, examination, or procedure after the patient receives the material facts about the nature, consequences, and risks of the proposed treatment, examination, or procedure; the alternatives to it; and the prognosis if the proposed action is not undertaken." (Id. )
11. Plaintiffs allege they have not had any "healthcare professional" "review the Janssen COVID-19 Vaccine consent form" with them nor have they signed a Janssen COVID-19 Vaccine consent form. (Am. Compl. ¶ 56.)
12. Plaintiffs further allege County health officials informed Defendants on or about March 18, 2021 of the availability of the Janssen Vaccine for WMCI prisoners. (Id. ¶ 58.) Because the Janssen Vaccine fact sheet and consent form had not been received, the Defendants allegedly "formed an agreement between and among themselves, and likely with others, to disregard and otherwise deliberately violate informed consent protocol and use the Janssen Vaccine without specific written notification to each prisoner at the WMCI." (Id. ¶ 59.) Plaintiffs speculate Defendants were concerned that if WMCI prisoners were provided informed consent they would decline the Janssen Vaccine because the technology underlying the Janssen Vaccine differed from the technology underlying the Pfizer and Moderna vaccines. (Id. ¶ 60.)
13. Plaintiffs allege that at no time prior to March 22, 2021 were they ever informed of the benefits and risks associated with the Janssen Vaccine or the "material facts about the nature, consequences, and risks" of the Janssen Vaccine, the alternatives to it, or the prognosis if they refused the vaccine. (Am. Compl. ¶ 61.)
14. On April 14, 2021, it was publicly reported that Wyoming paused the use of the Janssen Vaccine pending a study by federal researchers, which followed a decision by the Centers for Disease Control ("CDC") and the FDA to pause the use of the Janssen Vaccine because there had been severe reactions to the Janssen Vaccine. (Id. ¶ 66.) The identified side effect involved blood clotting. (Id. ¶ 67.) Plaintiffs allege that, although use of the Janssen Vaccine was permitted to resume, Defendants failed to notify any prisoner at WMCI of this potential side effect or that they should report developing symptoms within three weeks of having received the Janssen Vaccine. (Id. ¶ 68.)
15. When confronted with the lack of informed consent regarding the Janssen Vaccine, Defendants allegedly stated notice had been provided via the WMCI facility television channel. (Am. Compl. ¶ 73.) Plaintiffs allege they were unaware of any such notice before receiving the vaccine on March 19, 2021 and did not personally witness any notice regarding the Janssen Vaccine on the WMCI television channel. (Id. ¶¶ 74, 76.) Plaintiffs also allege they "do not pay any attention" to the facility channel because it is "routinely off the air, the material is outdated, and/or the material is illegible due to poor formatting or other issues." (Id. ¶ 77.)
16. Plaintiffs allege that "because WDOC and Corizon staff, including the Defendants, did not have the appropriate information sheet or informed consent form for the Janssen Vaccine they, likely in collaboration with or upon the advice and/or direction of others, knowingly, deliberately and intentionally failed or refused to post a written memorandum in the WMCI housing units notifying the prisoners, including the Plaintiffs, that they would be injected with the Janssen Vaccine on March 19, 2021." (Am. Compl. p 78.) Plaintiffs complain "no legitimate reason existed for them to be deprived of informed consent regarding the Janssen Vaccine." (Id. ¶ 80.)
17. Plaintiffs claim they "absolutely would have refused the Janssen Vaccine had they been made aware that it was the vaccine being offered them" based on the "total lack of information and the developing safety concerns" regarding the Janssen Vaccine. (Am. Compl. ¶ 85.)
18. Plaintiffs also claim they "suffered great bodily injury" when injected with the Janssen Vaccine in violation of WDOC informed consent policy and under the pretense they were receiving either the Pfizer COVID-19 Vaccine or the Moderna COVID-19 Vaccine. (Id. ¶ 87.) Additionally, "due to the uncertainty of the safety of the Janssen Vaccine," the Plaintiffs will allegedly continue to "suffer consternation and emotional distress" from having been injected with a vaccine without their informed consent. (Id. ¶ 88.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a plaintiff's complaint fails to state a claim upon which relief can be granted. In reviewing a motion to dismiss under Rule 12(b)(6), this Court must accept as true "all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009). In order to survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The "plausibility standard" is not a probability requirement but requires "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "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." Id. A pleader is not required to set forth "detailed factual allegations," but must offer more than "labels and conclusions," a "formulaic recitation of the elements of a cause of action," or "naked assertions devoid of further factual enhancement." Id. (alterations and internal quotation marks omitted). Facts, not conclusions, must be pleaded – "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," including where a "legal conclusion [is] couched as a factual allegation." Id.
The Court should liberally construe pro se filings. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). However, "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. "[I]f the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite a lack of proper legal citation or theories." Id. Even so, it is never "the proper function of the district court to assume the role of advocate for the pro se litigant." Id. Normally, an order dismissing a pro se complaint under 12(b)(6) should be without prejudice. See Gee v. Pacheco , 627 F.3d 1178, 1186 (10th Cir. 2010). But dismissal with prejudice is proper "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Id. (citation omitted).
DISCUSSION
Plaintiffs’ Amended Complaint asserts three claims for relief – two federal claims brought pursuant to 42 U.S.C. § 1983 and one state law claim for assault and battery. Specifically, Plaintiffs’ first claim asserts Defendant Martinez "deliberately injected the Plaintiffs with the Janssen Vaccine on March 19, 2021, without having first observed informed consent protocol," in violation of their "clearly-established substantive due process right of personal security and bodily integrity under the Fourteenth Amendment to the Constitution of the United States." (Am. Compl. ¶ 92.) Plaintiffs’ also assert their state law claim against Defendant Martinez claiming she "deliberately injected the Plaintiffs with the Janssen Vaccine ... without compliance with informed consent protocol or in excess of previously obtained informed consent." (Id. ¶ 95.) Plaintiffs’ third claim asserts Defendant Warden Pacheco "deliberately failed to properly supervise Ms. Martinez and require her compliance with informed consent protocol before injecting the Plaintiffs with the Janssen Vaccine," "knowingly and intentionally turned a blind eye to the misconduct by Ms. Martinez," "knowingly and intentionally conspired with Ms. Martinez to deprive the Plaintiffs of their right to informed consent," or "knowingly and intentionally authorized, aided or abetted the misconduct by Ms. Martinez," in violation of Plaintiffs’ "clearly-established substantive due process right of personal security and bodily integrity under the Fourteenth Amendment to the Constitution of the United States." (Id. ¶ 98.) Plaintiffs seek compensatory and punitive damages. (Id. ¶ 101.)
In support of their motion to dismiss, Defendants argue Plaintiffs’ Amended Complaint fails to state a claim upon which relief may be granted. Defendants further argue Plaintiffs have not alleged facts supporting a due process claim against Warden Pacheco based on his own personal actions and, moreover, Warden Pacheco is entitled to qualified immunity. Finally, Defendants argue Plaintiffs’ assault and battery claim must be dismissed because the administration of the vaccine was not entirely unauthorized.
A. Due Process Claims
Neither the United States Supreme Court nor the Tenth Circuit has yet ruled whether the Fourteenth Amendment requires inmates be provided with informed consent in order to reasonably accept or decline medical treatment. However, even in the circuits which have considered and recognized a due process right in this context, Plaintiffs’ Amended Complaint fails to satisfy the pleading requirements for asserting such a claim.
The Second and Seventh Circuits have most recently found inmates are entitled to receive medical information necessary to make an informed decision about whether to accept or refuse medical treatment; however, the right is "far from absolute." Knight v. Grossman , 942 F.3d 336, 342 (7th Cir. 2019) (quoting Pabon v. Wright , 459 F.3d 241, 249-50 (2nd Cir. 2006) ). In these circuits, to establish a violation of his right to informed consent, a prisoner must establish the following: "(1) he was deprived of information that a reasonable patient would deem necessary to make an informed decision about his medical treatment, (2) the defendant acted with deliberate indifference to the prisoner's right to refuse treatment, and (3) if the prisoner had received the information, he would have refused the treatment." Knight , 942 F.3d at 343-44 (adopting Pabon standard). See also Licerio v. Lamb , No. 20-CV-00681-WJM-STV, 2021 WL 4556092, at *15-16 (D. Col. July 15, 2021) (applying King and Pabon standards to prisoner claim for violation of right to informed consent under the Fourteenth Amendment, recognizing "neither the Supreme Court nor the Tenth Circuit has yet considered whether the substantive due process right to refuse treatment includes an ancillary right to obtain medical information about the treatment").
The Seventh Circuit explained the first and third "limitations" are "necessary because the logical source of the right to medical information is the right to refuse treatment, so the right to medical information exists only as far as needed to effectuate the right of refusal." 942 F.3d at 342. With respect to the "deliberate indifference" element, "[n]either negligence nor gross negligence is enough to support a substantive due process claim, which must be so egregious as to ‘shock the conscience.’ " Id. at 343. And finally, even "[i]f the prisoner establishes that his right to informed consent has been violated, [the court] then take[s] the second and final step of balancing the prisoner's right to informed consent against countervailing state interests. Liability arises only if, in the end, the prisoner's right outweighs the state interests." Id. at 344.
Here, Plaintiffs allege they were not told they would be receiving the Janssen Vaccine nor given information about the Janssen Vaccine and its potential side effects before being injected. It is plausible a reasonable patient would deem this information necessary to make an informed decision about consenting to the vaccine. Accepting these allegations as true, Plaintiffs’ complaint establishes the first element of their due process claim under the foregoing authority. However, the documents attached to Plaintiffs’ response brief belie their allegations. Plaintiffs assert the Janssen Fact Sheet (ECF No. 15-1) was posted in the prisoner housing units on March 22, 2021 (Am. Compl. ¶ 37). While Plaintiffs assert they were injected with the Janssen Vaccine on March 19, 2021, their Consent Forms indicate the vaccine was administered to them on March 31, 2021 (see Consent Forms, ECF Nos. 15-2, 15-3, 15-4), after they had been provided information about the Janssen Vaccine and presumably aware that was the vaccine ultimately made available for WMCI prisoners. "Although this Court accepts as true all well-pleaded allegations and draws all inferences in favor of the plaintiff, if there is any dispute between the allegations in the complaint and the attached exhibits, the exhibits control." Wood v. Houghton Mifflin Harcourt Pub. Co. , 569 F. Supp. 2d 1135, 1139 (D. Colo. 2008) (citing Olpin v. Ideal Nat'l Ins. Co. , 419 F.2d 1250, 1255 (10th Cir. 1969) ; 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure , § 1327 (3d ed. 2004) ("[W]hen a disparity exists between the written instrument annexed to the pleadings and the allegations in the pleadings, the terms of the written instrument will control, particularly when it is the instrument being relied upon by the party who made it an exhibit.")).
Regardless, Plaintiffs’ complaint fails to plausibly establish the remaining elements of a due process claim for violation of the right to informed consent. Other than simply asserting that "obviously" no reasonable person would consent to being injected with the Janssen Vaccine without having first been provided information about it (Am. Compl. ¶ 86; Pls.’ Resp. Br. at 7), Plaintiffs allege no facts as to why they would have refused the Janssen Vaccine had they been made aware that it was the vaccine being offered them. Plaintiffs point to nothing contained in the Janssen Fact Sheet issued in March of 2021, or to any side effect related to the Janssen Vaccine known on March 19 (or 31), 2021 which differed from the Moderna and Pfizer vaccine, that would have caused them to refuse the Janssen Vaccine at the time it was administered to them. While Plaintiffs allege they would have refused the Janssen Vaccine due to the "developing safety concerns" related to a potential side effect of blood clotting, Plaintiffs have not pled any facts which establish either Nurse Martinez or Warden Pacheco would have been aware of this side effect at the time Plaintiffs received the vaccine. Indeed, Plaintiffs acknowledge it wasn't until April 13, 2021 that the CDC and FDA made the decision to pause use of the Janssen Vaccine because of "severe reactions." (Am. Compl. ¶ 66.) To avoid liability in situations where, "after receiving appropriate treatment that proved to have unpleasant side effects, a prisoner [ ] claims [ ] he had not received sufficient information to allow him to decide whether to refuse that treatment," prisoners are not entitled to "an exhaustive list of all the possible adverse effects of each aspect of [their] treatment." Pabon , 459 F.3d at 250. And, although Plaintiffs reference the differing technology underlying the Janssen Vaccine from the Pfizer and Moderna vaccines (see Am Compl. ¶¶ 60, 62-65), they do not allege this difference would have led them to refuse the Janssen Vaccine.
Plaintiffs’ complaint is also devoid of facts to support a finding that Defendants acted with deliberate indifference to their right to refuse treatment. It appears Corizon Health prepared a "COVID-19 Vaccine 2020-2021 Patient Consent or Declination" form in December of 2020 when the FDA granted Emergency Use Authorization ("EUA") for the Pfizer and Moderna vaccines. (See Am. Compl. ¶ 22; Consent Forms, ECF Nos. 15-2, 15-3, 15-4.) It makes sense that the Janssen Vaccine is not mentioned on this form because it was not granted EUA until late February 2021. (Am. Compl. ¶ 22.) Plaintiff Bird reached out to Corizon staff at WMCI requesting information on the COVID-19 vaccines. (Id. ¶ 23.) In response, Corizon's Regional Director of Nursing advised that, as of January 18, 2021, they did not yet know which vaccine would be available to WMCI prisoners. (Id. ¶ 24.) Undoubtedly in preparation for distribution of the vaccines as soon as they became available, Consent Forms were circulated to WMCI prisoners on March 10, 2021. (Id. ¶¶ 27, 31.) Somehow Plaintiffs were notified of the time, date, and place to receive the vaccine, because the Amended Complaint establishes, they were, in fact, voluntarily vaccinated.
Plaintiffs allege the Pfizer and Moderna information sheets were posted in the prisoner housing units at WMCI soon after those vaccines received EUA. (Am. Compl. ¶ 25.) Plaintiffs further allege the Janssen Fact Sheet was not available to the WDOC when the Janssen Vaccine was delivered to WMCI on or about March 18, 2021. (Id. ¶ 40.) Although Plaintiffs’ complaint does not allege when, exactly, they were told their vaccinations would be administered on March 19 (or 31), accepting Plaintiffs’ alleged timeline of events as true, Defendants had little time to distribute the Janssen Fact Sheets to prisoners wanting to be vaccinated. Once they became aware that the Janssen Vaccine would be the one available for distribution to prisoners, it might have been prudent, under normal circumstances, for Defendants to have revised and redistributed the Consent Forms and posted the Janssen Vaccine information sheet for a period of time prior to administering the vaccine. However, considering Defendants’ actions in the context of the COVID-19 pandemic, and considering the known potential side effects from the Janssen Vaccine did not materially differ from those associated with the Pfizer or Moderna vaccines, the allegation that Defendants proceeded with the voluntary vaccinations without first revising the Consent Forms and providing the information sheet to Plaintiffs does not "shock the conscience." Where "[e]xigent circumstances" are present, "even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates the large concerns of the governors and the governed." Pabon , 459 F.3d at 251 (internal quotations and citations omitted).
Plaintiffs’ conclusory allegation of a conspiracy to deceive WMCI prisoners with respect to the vaccine is unsupported by facts. And none of the plausible allegations in the Amended Complaint establish any subjective intent to deprive Plaintiffs of their right to refuse treatment sufficient to proceed on a substantive due process claim against either Ms. Martinez or Warden Pacheco. "Inadvertent failures to impart medical information cannot form the basis of a constitutional violation. The simple lack of due care does not make out a violation of either the substantive or procedural aspects of the Due Process Clause of the Fourteenth Amendment." Pabon , 459 F.3d at 250. Neither does the failure to follow prison policies amount to a constitutional violation. See Ernst v. Creek Cty. Pub. Facilities Auth. , 697 F. App'x 931, 934 (10th Cir. 2017) ("The Supreme Court has held that simply failing to follow jail policies is not a constitutional violation in and of itself.") (citing Davis v. Scherer , 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) ); Millward v. Bd. of Cnty. Comm'rs , No. 17-CV-117-SWS, 2018 WL 9371573, at *12 (D. Wyo. Oct. 19, 2018).
Finally, Plaintiffs’ Amended Complaint fails to address at all the balancing of their asserted right to informed consent against countervailing state interests. Considering the seriousness of the COVID-19 outbreak and the risk it posed to incarcerated prisoners (see Am. Compl. ¶¶ 16-18), WMCI's "legitimate penological interests" in vaccinating its prisoners and staff as quickly as possible is "not open to debate." Pabon , 459 F.3d at 252.
[A] prisoner's right to refuse medical treatment need not be honored if legitimate penological interests require the prisoner to be treated. If prison officials, including doctors, identify situations in which they reasonably believe that treatment is required, notwithstanding the prisoner's asserted right to refuse it, the right must give way. Obvious examples would be the treatment of an infectious disease , avoidance of contaminations, or prevention of disruption by illness-induced behaviors. On the other hand, one can conceive of instances when legitimate penological interests would not justify interfering with a prisoner's rights to medical information and to refuse treatment, such as end-of-life decisions. Thus, a prison may compel a prisoner to submit to treatment despite his general right to refuse such treatment when prison officials, "in the exercise of professional judgment, deem it necessary to carry out" legitimate penological objectives.
If legitimate penological interests dictate that a particular treatment must be administered even if the prisoner would have refused it, then because there is no constitutional right to refuse treatment, there is no corollary right to be informed about the treatment. The Constitution does not require prison officials to convey information intended to allow the prisoner to exercise a right that is unavailable to him. We leave to prison officials and physicians the determination of what information is appropriately passed along to prisoner-patients in situations where treatment is mandated.
Id. (internal citation omitted) (emphasis added). Just because the WDOC has not mandated vaccinations for all prisoners or staff does not mean the administration of COVID-19 vaccines in March of 2021 to any prisoner who wanted one – in an effort to prevent a COVID-19 outbreak – was not a legitimate penological interest outweighing the prisoner's right to informed consent.
Thus, even accepting the Second and Seventh Circuits’ parameters of a prisoner's right to informed consent, Plaintiffs’ Amended Complaint fails to state a claim for violation of such a right.
B. Qualified Immunity
Warden Pacheco argues he is entitled to qualified immunity. "Qualified immunity protects governmental officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Schwartz v. Booker , 702 F.3d 573, 579 (10th Cir. 2012) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). To survive a motion to dismiss based on qualified immunity, then, a plaintiff must allege sufficient facts that show "the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation." Id. ; see also Hernandez v. Ridley , 734 F.3d 1254, 1258 (10th Cir. 2013). As discussed above, Plaintiffs have failed to allege sufficient facts that show Defendants plausibly violated their constitutional rights. Moreover, there are no factual allegations that establish Warden Pacheco was personally involved in administering the vaccines, other than allegedly requesting Department of Corrections’ staff pass out consent forms in advance. "Individual liability under § 1983 must be based on [the defendant's] personal involvement in the alleged constitutional violation." Schneider v. City of Grand Junction Police Dep't , 717 F.3d 760, 768 (10th Cir. 2013) (internal quotation marks omitted). Defendants sued in their individual capacities are "only liable for [their] own misconduct." Id. at 767. In this regard, Plaintiffs’ claim premised on an alleged failure to supervise Nurse Martinez fails because liability must be based on more than a defendant being "in charge of other state actors who actually committed the violation;" instead, "plaintiff[s] must establish a deliberate, intentional act by the supervisor to violate constitutional rights." Serna v. Colo. Dep't of Corr. , 455 F.3d 1146, 1151 (10th Cir. 2006) (internal quotation and citation omitted). "The mere fact that [a contract healthcare provider] did not ... provide constitutionally-adequate [ ] care is not enough, by itself, to show deliberate indifference on the part of [prison officials]." Stack v. McCotter , 79 F. App'x 383, 390 (10th Cir. 2003). Plaintiffs’ conclusory and speculative allegations that Warden Pacheco intentionally conspired with Ms. Martinez to deprive Plaintiffs of their right to informed consent or "turned a blind eye to the misconduct by" Ms. Martinez (Am. Compl. ¶ 98) do not plausibly establish "a deliberate, intentional act" to violate Plaintiff's constitutional rights.
Even so, Plaintiffs do not allege the violation of a constitutional right which was clearly established. "[T]he contours of a particular right are generally only sufficiently clear to put a reasonable official on notice if a plaintiff (1) identifies an on-point Supreme Court or published Tenth Circuit decision ..., or (2) shows the clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains...." Perry v. Durborow , 892 F.3d 1116, 1123 (10th Cir. 2018) (internal quotations and citations omitted). Plaintiffs have not identified either a Supreme Court or a Tenth Circuit decision, published or unpublished, establishing the contours of a prisoner's right to informed consent or, more particularly, that a prisoner's right to informed consent is violated where officials fail to provide "specific written notification to each prisoner" regarding the manufacturer of a vaccine. Neither does the precedent from four other circuits constitute a "clearly established weight of authority" which would have put a reasonable official in Warden Pacheco's position on notice that his supervisory conduct related to the COVID-19 vaccine distribution would effect a due process violation. Thus, Warden Pacheco is entitled to qualified immunity.
"In applying this test, courts must not define the relevant constitutional right at a high level of generality.... Instead, as the Supreme Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case." Perry , 892 F.3d at 1123 (internal quotations and citations omitted).
C. State Law Claim for Assault and Battery
Wyoming law governs Plaintiffs’ claim for assault and battery against Defendant Martinez. Because Plaintiffs’ federal due process claims must be dismissed, this Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claim. See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. , 956 F.3d 1228, 1238 (10th Cir. 2020) ("The Supreme Court has encouraged the practice of dismissing state claims or remanding them to state court when the federal claims to which they are supplemental have dropped out before trial.").
D. Motion to Amend Complaint
Almost two weeks following completion of briefing on the Defendants’ present motion to dismiss, Plaintiffs filed a motion seeking leave to file a second amended complaint. (See ECF No. 19.) Plaintiffs want to amend their complaint again to assert Defendants actually were in possession of the Janssen Fact Sheet prior to their inoculations on March 19, 2021. In support, Plaintiffs attach a Corizon Health form titled "COVID-19 Vaccine 2020-2021 Employee Consent and Vaccine Administration" which was purportedly revised "03/2021" and mentions the availability of the Janssen Vaccine and associated information sheet. However, nothing about this form (which Plaintiffs allegedly "came into possession of" on December 8, 2021) helps Plaintiffs establish the elements of their due process claims. Although the form suggests the availability of the Janssen Fact Sheet to Corizon and its employees, the form's existence sometime in March of 2021 does not establish either Defendant Martinez or Warden Pacheco actually received a copy of the form or the Janssen Fact Sheet prior to March 19, 2021.
Regardless, this factual allegation does not alter the Court's analysis. Whether Defendants were in possession of the Janssen Fact Sheet shortly after the Janssen Vaccine was granted EUA in late February or not until after the vaccine was delivered to WMCI for distribution to prisoners, Defendants’ alleged failure to timely provide it to the prisoners does not constitute deliberate indifference to Plaintiffs’ right to refuse medical treatment. Moreover, Plaintiffs have still failed to plausibly establish the remaining elements of a due process claim for violation of the right to informed consent: that if they had received the information, they would have refused the treatment; and that their right to informed consent outweighs the state interests under these circumstances. Because Plaintiffs’ proposed amendment would be futile, their motion for leave to amend should be denied. See Bradley v. Val-Mejias , 379 F.3d 892, 901 (10th Cir. 2004) ("district court may deny leave to amend where amendment would be futile[;] [a] proposed amendment is futile if the complaint, as amended, would be subject to dismissal").
CONCLUSION
Even accepting and applying the parameters of a prisoner's due process right to informed consent as adopted by circuits other than the Tenth Circuit, Plaintiffs have failed to plausibly state a claim for violation of such a right. Moreover, because the asserted right was not clearly established, Defendant Warden Pacheco is entitled to qualified immunity. And finally, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claim. THEREFORE, it is hereby
ORDERED that Defendants’ Motion to Dismiss Amended Complaint (ECF No. 11) is GRANTED. Plaintiffs’ due process claims are DISMISSED WITH PREJUDICE and Plaintiffs’ state law claim is DISMISSED WITHOUT PREJUDICE; it is further
ORDERED that Plaintiffs’ Motion for Leave to File Second Amended Complaint (ECF No. 19) is DENIED; it is further
ORDERED that Plaintiffs’ Motion for Leave to File Additional Evidence in Support of Motion for Leave to File Second Amended Complaint (ECF No. 22) is DENIED as moot.