Opinion
Civil Action 1:22-cv-01783-PAB-SBP
07-23-2024
TODD WESLEY ECKLEY, Plaintiff, v. WARDEN BARRY GOODRICH, REBECCA L. WALTERS, SANDRA SANDY JOHNSON, LESLIE A. CARMAN, and CROWLEY COUNTY CORRECTIONAL FACILITY, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter comes before the court for recommendation on Defendants' Motion to Dismiss Plaintiff's Fifth Amended Complaint, ECF No. 62 (filed September 26, 2023) (“Motion” or “Motion to Dismiss”). The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order of Reference dated October 31, 2022 (ECF No. 24), and the Memorandum dated September 26, 2023 (ECF No. 63). This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having carefully reviewed the Motion and associated briefing (ECF Nos. 64, 67, and 68), the docket, and applicable law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
The filing docketed at ECF No. 68 is entitled “Plaintiff's Reply to Defendants' Reply in Support of Motion to Dismiss Plaintiff's Fifth Amended Complaint” and is, technically, a surreply which Plaintiff did not seek this court's permission to file. Nevertheless, in consideration of Plaintiff's pro se status, the court has taken this filing into account in
BACKGROUND
Plaintiff Todd Wesley Eckley (“Plaintiff” or “Mr. Eckley”), is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”). He currently is incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado, see ECF No. 70, but his claims in this action relate to medical care he received when he was confined at the Crowley County Correctional Facility (“CCCF”) in Olney Springs, Colorado. The court takes the following facts from Mr. Eckley's Fifth Amended Complaint, ECF No. 36-1 (hereafter, the “Complaint”) and the excerpts from his prison medical records Mr. Eckley attached to the Complaint, id. at 11-17,and presumes they are true for purposes of the instant Motion to Dismiss.
This court is authorized to take into account the documents attached to the Complaint in evaluating Defendants' Motion under Federal Rule of Civil Procedure 12(b)(6). Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (exceptions to general rule that sufficiency of a complaint rests on its contents alone include “(1) documents that the complaint incorporates by reference, (2) documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity; and (3) matters of which a court may take judicial notice”) (internal citations and quotation marks omitted); Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint.”).
Mr. Eckley injured himself on Friday, February 18, 2022, at approximately 10:45 a.m. while he was doing repetitive “dips”-lifting his body weight while holding onto bars. Id. at 7; id. at 13 (2/18/2022 Condensed Health Services Encounter record). He was taken to the medical unit at CCCF, where he was assigned to the care of Defendants Walters and Johnson. Id. at 7. Within approximately an hour of Mr. Eckley's injury, Ms. Walters, a nurse practitioner, had determining that the Motion to Dismiss should be granted. ordered x-rays of his right shoulder and humerus. Id. at 7 & 12 (2/18/2022 “Clinical Order” for x-rays entered by Heather Trujillo at 11:52:48 a.m. and 11:55:14 a.m.). Ms. Trujillo, who apparently worked in the medical unit at CCCF, recorded that Mr. Eckley had been assessed by Ms. Walters and a physician assistant named Singh, resulting in the order of a “STAT”-or immediate-x-ray. Id. at 14 (2/18/2022 Condensed Health Services Encounter record for Plaintiff referencing “immediate transport for X-Ray”). “STAT” orders were also issued for Mr. Eckley to receive two medications for pain control: Diclofenac, a prescription medication, and Tylenol, 500 mg. Id. Additionally, Ms. Walters ordered that Mr. Eckley be immediately transported to a hospital in La Junta, Colorado, for the x-rays. Id. at 7, 14. But her order was overridden by a lieutenant named Macek, who informed her that CCCF “did not have the staff to do an immediate transport,” and that Mr. Eckley would have to wait until the afternoon shift came on. Id. at 7. Ms. Walters replied that Mr. Eckley will “be alright to wait . . . we'll just keep him in [the] Medical [unit] until then.” Id. Mr. Eckley contends that he was in “extreme pain” while he waited for the afternoon shift to arrive to transport him to the hospital.
The court takes notice that the commonly-used medical term “STAT” means “immediately.” See Medical Abbreviations & Acronyms: S | OpenMD.com; see also Fed. R. Evid. 201 (court make take judicial notice of “a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction; or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Gee, 627 F.3d at 1186 (facts subject to judicial notice may considered on motion to dismiss).
As it turned out, CCCF staff were unable to transport Mr. Eckley to the hospital until approximately 5:40 p.m. on February 18, 2022, and hospital personnel took the x-rays at about 6:20 p.m. Id. Mr. Eckley left the hospital approximately ten minutes later and was returned to the medical unit at CCCF, where Defendant Johnson, a nurse at the facility, was on duty. Id. at 8. According to Mr. Eckley, a sergeant named Villareal called Ms. Johnson from the transport vehicle, informed her that Plaintiff's arm was “broken bad,” and requested permission to take Plaintiff to “be dropped off at Colorado Territorial Correctional Facility for immediate care.” Id. The court takes notice of information on CDOC's website, which shows that Colorado Territorial Correctional Facility is located in Cañon City, Colorado-more than seventy miles from Olney Springs, where CCCF is located. See Colorado Territorial Correctional Facility | Department of Corrections; see also, e.g., Sierra Club v. U.S. Env't Prot. Agency, 964 F.3d 882, 893 n.9 (10th Cir. 2020) (taking judicial notice of information on government website). Ms. Johnson declined the sergeant's recommendation to drive Mr. Eckley to a different prison and directed that he be returned to CCCF. In Mr. Eckley's view, this deprived him of “access to proper medical care” because CCCF is “understaffed.” Complaint at 8-9.
A Health Services Encounter record attached to the Complaint documents Ms. Johnson's contemporaneous observation that Mr. Eckley
returned from outside appt with security for xray of arm. Is sitting in wheelchair, wearing sling and ace wrap around mid sectioon [sic] of stomach. Does not appear in any distress. No facial grimacing.Id. at 15 (2/18/2022 Condensed Health Services Encounter note by Sandra Johnson at 19:36:10 (7:36 p.m.)). While Mr. Eckley rated his pain “as 9/10,” he stated that he did not “want to stay in medical. I have help, a lot of it.” Id. Ms. Johnson received a verbal report from a staff nurse at the Arkansas Valley Regional Medical Center in La Junta, who conveyed that Plaintiff's x-rays showed a displaced right proximal humeral fracture. Id. Ms. Johnson then called Ms. Walters, who gave orders concerning Mr. Eckley's care. Id. Following that call, Ms. Johnson released Mr. Eckley back to his housing unit with a wheelchair and a cane. Id.
According to Mr. Eckley, he returned to the CCCF medical unit the next day because of his “extreme pain.” Id. at 8. At that point, Ms. Johnson “bl[ew] up” at him and informed him that, if he kept coming to medical over his pain issues, she would put him in “medical solitary” with only a mattress and blanket-which Mr. Eckley labels “a forced deterrent on treatment of medical needs.” Id. No record of this alleged encounter is attached to the Complaint.
Mr. Eckley next returned to the medical unit on Tuesday, February 22, 2022, at approximately 8:30 a.m., for a follow-up visit with Ms. Walters. Id. at 16-17 (2/22/2022 Condensed Health Services Encounter record (referencing time stamps of 08:32:08 and 08:53:42). Mr. Eckley alleges that he was “extremely sick and in extreme pain” at the time. Id. at 8. Regarding the same encounter, Ms. Walters recorded that Plaintiff “currently has [his right arm] in sling, tolerating pain with diclofenac and acetaminophen.” Id. at 16. She further noted that Mr. Eckley was scheduled for an “ortho visit 3-1-22.” Id. at 17; see also Id. at 9 (acknowledging March 1, 2022 appointment with orthopedist). Mr. Eckley's view is that the appointment with the orthopedist should have been set sooner, and he rejects as insufficient the explanation for the timing (conveyed to him by Ms. Walters and Ms. Johnson) that “he had to wait approval from the insurance provider.” Id. at 8. The March 1 appointment, he contends, amounts to “denying [him] the proper medical care for a serious medical need.” Id. at 8.
Mr. Eckley pleads that this encounter occurred on February 23, 2022, Complaint at 8, but it is apparent from the time stamps and Ms. Walters's notes that page 17 is a continuation of the February 22, 2022 Condensed Health Services Encounter record. “Factual allegations that contradict . . . a properly considered document are not well-pleaded facts that the court must accept as true.” Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013).
Ms. Carman, the CCCF medical scheduler, is alleged to have scheduled the appointment with the orthopedist, id. at 6, 9, although her name is not listed on the referenced medical record. Id. at 9, 17. Warden Goodrich's alleged role in Mr. Eckley's medical care is that the Warden “admitted” to the inmate population that he sometimes had twelve or fewer staff members to run CCCF, a private prison operated by CoreCivic. Id. at 9. Mr. Eckley claims that CoreCivic has the money to hire more staff because he read about it “in a prison newspaper.” Id. And so he concludes that “CoreCivic recklessly ran Crowley County Correctional facility to the point that the plaintiff's emergency was intentionally diverted causing the plaintiff to suffer for almost three weeks in pain and poisoning.” Id. (emphasis added). Mr. Eckley makes no allegations concerning any events that post-date Friday, March 11, 2022-three weeks after his injury on February 18, 2022.
The allegations in the immediately prior version of Mr. Eckley's complaint suggest that he had surgery on March 8, 2022-eighteen days after his injury. ECF No. 21 at 6. Defendants urge the court to take judicial notice of these allegations because they are contained in this court's files. Motion at 5. The court declines to do so. “It is well-established that an ‘amended complaint supersedes the original complaint and renders the original complaint of no legal effect.'” Scott v. Buckner Co., 388 F.Supp.3d 1320, 1323-24 (D. Colo. 2019) (quoting Franklin v. Kan. Dep't of Corr., 160 Fed.Appx. 730, 734 (10th Cir. 2005) (citing Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991), and Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991)); see also Felts v. Stallion Oilfield Servs. Ltd., No. 19-cv-03153-RM-NYW, 2020 WL 3052525, at *2 (D. Colo. May 18, 2020) (“an amended complaint supersedes and nullifies a previous pleading”) (citing Scott, 388 F.Supp.3d at 1323-24), report and recommendation adopted, 2020 WL 3047656 (D. Colo. June 8, 2020). For purposes of its evaluation of the instant Motion to Dismiss, the court confines its analysis to the Complaint and accompanying attachments and facts properly subject to judicial notice.
Mr. Eckley divides his Complaint into three claims, id. at 7-9, but the precise basis for that demarcation is unclear. Regardless, the court construes the Complaint as raising claims against each individual Defendant for purported violations of the Eighth Amendment pursuant to 42 U.S.C. § 1983.He seeks various forms of monetary relief from each Defendant, claiming total damages in excess of two million dollars. Id. at 10. Defendants move to dismiss the Complaint in its entirety, arguing that Mr. Eckley's allegations fail to plausibly demonstrate that any Defendant acted in such a way as to violate his Eighth Amendment rights and, additionally, that Warden Goodrich did not personally participate in Mr. Eckley's medical treatment. Motion at 5-9. Further, Defendants argue that Mr. Eckley's allegations are insufficient to assert a plausible municipal liability claim against CCCF pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).
Mr. Eckley states that he is seeking damages from Warden Goodrich and CoreCivic, which was terminated from the case upon the filing of his Second Amended Complaint on September 12, 2022, “for punishment including emotional injury resulting from the denial of due process in connection with being under staffed resulting in the delay to access to a outside hospital.” Complaint at 10 ¶ 3. The court does not interpret the Complaint as seeking to raise a due process claim. Liberally construing Mr. Eckley's allegations, as the court must, he seeks recompense for alleged deficiencies in the medical care he received at CCCF. For a convicted inmate like Mr. Eckley, such claims are brought pursuant to the Eighth, not the Fourteenth, Amendment. See, e.g., Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021) (recognizing that “[t]he Fourteenth Amendment's Due Process Clause entitles pretrial detainees to the same standard of medical care that the Eighth Amendment requires for convicted inmates”) (citing Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020)); see also Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1242 (D. Colo. 2012) (“The Court appropriately disregards the legal labels applied by a pro se plaintiff when those labels serve to obfuscate the nature of the legal claims asserted.”) (citing Castro v. United States, 540 U.S. 375, 381 (2003) (noting federal courts should ignore labels attached to pro se claims “to create a better correspondence between the substance of [the party's claims] and [the] underlying legal basis”)).
The court observes that there are scattered references to “poisoning,” without explanatory factual averments, strewn throughout the Complaint. However, liberally construing the medical record, the court infers that “poisoning” is somehow connected to Mr. Eckley's injury, for which he was sent to a specialist for follow-up care and surgery. Complaint at 17 (in 2/22/2022 Condensed Health Services Encounter record, listing a “Related Problem” of “Injury and Poisoning” and a diagnosis of “fracture of shoulder girdle,” with a note, “refer to orthopedic). As explained in this recommendation, Mr. Eckley has failed to plead that any Defendant acted with deliberate indifference toward any serious medical need, including this alleged “poisoning.”
The court now evaluates the plausibility of Mr. Eckley's claims pursuant to the applicable legal principles. For the reasons that follow, the court concludes that he has pleaded no plausible claim against any Defendant.
STANDARD OF REVIEW
“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) (internal quotation marks and quotation 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.” Id.; 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”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). In making this determination, the “court accepts as true all well pleaded factual allegations in a complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
Defendants advocate for the application of the old no-set-of-facts standard for evaluating motions to dismiss pursuant to Rule 12(b)(6). Motion at 3-4 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). That standard, “first articulated in Conley . . ., was deemed ‘defunct' and ‘best forgotten' by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).” Park Rise Homeowners Ass'n v. HDI Glob. Specialty SE, No. 19-cv-01268-DME-NRN, 2021 WL 9956621, at *3 (D. Colo. June 2, 2021) (quoting Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 918 n.7 (10th Cir. 2012)). Consistent with this well-established law, this court does not apply the now-defunct Conley standard in assessing whether Mr. Eckley's claims survive scrutiny under Rule 12(b)(6).
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.” Twombly, 550 U.S. at 555; 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). “[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), reh'g en banc denied, 83 F.4th 1251 (10th Cir. 2023).
In applying the above principles, this court is mindful that Mr. Eckley 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, Okla., 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.'”) (quoting Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994)).
ANALYSIS
Liberally construed, the fundamental allegations on which Mr. Eckley's Eighth Amendment claims are premised are the passage of approximately seven hours between the time of his injury and his receiving x-rays; the ten-day interval between his injury and his consultation with an orthopedic specialist who could surgically repair his shoulder; the subsequent scheduling of his surgery (which was completed by March 11, 2022); and his disagreement with the pain- treatment regimen prescribed by Ms. Walters and Ms. Johnson.
I. Deliberate Indifference Claims Against the Individual Defendants
“The Supreme Court has explained that ‘the treatment a prisoner receives . . . and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.'” Contreras on behalf of A.L. v. Dona Ana Cnty. Bd. of Cnty. Commissioners, 965 F.3d 1114, 1116 (10th Cir. 2020) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)) (Tymkovich, J., concurring). Among the affirmative obligations the Eighth Amendment imposes on prison officials is to provide adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (“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.”). A prisoner who believes himself the subject of deliberate indifference at the hands of prison officials may seek redress under § 1983. Contreras, 965 F.3d at 1117 (citing Estelle v. Gamble, 429 U.S. 97, 104-06 (1976)). However, not every medical injury is of constitutional magnitude.
To establish deliberate indifference to his medical needs, Mr. Eckley must plead non-conclusory facts which plausibly support both an objective component and a subjective component. Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018). That is, the well-pleaded facts must allow the court reasonably to infer that each Defendant was “subjectively aware” of an objectively serious medical need and “recklessly disregarded that risk.” Wilson v. Falk, 877 F.3d 1204, 1209 (10th Cir. 2017) (cleaned up).
A. Objective Component
“The objective component of deliberate indifference is met if the ‘harm suffered rises to a level ‘sufficiently serious' to be cognizable under the Cruel and Unusual Punishment Clause.'” Burke v. Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (quoting Mata, 427 F.3d at 753). A plaintiff who alleges a denial of medical care must “produce objective evidence that the deprivation at issue was in fact sufficiently serious.” Estate of Booker v. Gomez, 745 F.3d 405, 430 (10th Cir. 2014) (internal quotation marks omitted). “‘A medical need is objectively 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.'” Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018) (quoting Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (cleaned up)).
If “the claim involves a delay in treatment, [a plaintiff] ha[s] to show ‘that the delay resulted in substantial harm[.]'” Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018) (quoting Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014)). A showing of “lifelong handicap, permanent loss, or considerable pain” may satisfy the substantial harm requirement. McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (citing Requena, 893 F.3d at 1216). As Defendants note, the well-pleaded facts show that Mr. Eckley was not denied treatment (including surgery) for the injury he sustained on February 18, 2022; his allegations of deliberate indifference hinge primarily on his “disagreement with the speed upon which his treatment was provided.” Motion at 6. He thus was obliged to allege the existence of substantial harm attendant on the alleged delay in treatment. The court finds that no inference of substantial harm may be drawn from the well-pleaded facts here.
Mr. Eckley's allegations do not plausibly suggest the existence of any “lifelong handicap” or “permanent loss” tied to the few hours that passed between his late-morning injury and his obtaining diagnostic testing at the Arkansas Valley Regional Medical Center in the late afternoon of the same day. At the hospital, x-rays were taken, and Mr. Eckley has not alleged that healthcare providers at the hospital thought he should receive emergency surgery or any substantive treatment for his injury at the time-let alone treatment that would have prevented a grievous injury had it been furnished a few hours earlier. Neither do Mr. Eckley's allegations demonstrate that lifelong handicap or permanent loss ensued because he was not transported to an outside orthopedic specialist until eleven days after his injury or because surgery was not performed until, at the very latest, three weeks after his injury. See Complaint at 9. Mr. Eckley's allegations thus fail to satisfy the objective component with respect to any purported delay in access to x-rays, an orthopedic specialist, or surgery, as to any of the individual Defendants.
Turning next to the question of whether Mr. Eckley has plausibly alleged that the pain he experienced while he waited for surgery satisfies the substantial harm requirement, see McCowan, 945 F.3d at 1291, the court must take into account the entirety of his pleading- including his allegation that he was in “extreme pain” while awaiting surgery and the facts showing that, immediately following his injury, he received a prescription medication and extra-strength Tylenol for pain control; that CCCF medical providers found that he exhibited no physical manifestation of pain and concluded that he was “tolerating pain with diclofenac and acetaminophen”; and that no physician (including at the hospital) determined that his pain was so severe as to require immediate, emergency surgery or a more powerful pain medication than those already prescribed by his CCCF providers. See Complaint at 9, 15-16. These well-pleaded facts, taken together, permit no inference that that any delay in Mr. Eckley's access to an orthopedic specialist or to surgery resulted in uncontrolled, considerable pain rising to the level of substantial harm.
Regardless, were the court to assume that Mr. Eckley's allegations are sufficient to meet the objective prong of the deliberate indifference test, his pleading still would not satisfy the subjective component. Because this is a recommendation, the court proceeds to evaluate the pleading deficiencies on the subjective prong.
B. Subjective Component
“To satisfy the subjective component, the plaintiff must show that the defendant knew that the plaintiff faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Estate of Lockett by & through Lockett v. Fallin, 841 F.3d 1098, 1112 (10th Cir. 2016) (internal quotation marks omitted). “The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed.” Redmond v. Crowther, 882 F.3d 927, 940 (10th Cir. 2018) (cleaned up; emphasis added). “The fact that a serious medical need was ‘obvious' could be evidence of deliberate indifference, although a ‘prison official may show that the obvious escaped him' and avoid liability.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 843 n.8). Ultimately, to allege a culpable mindset, a plaintiff must plead facts showing that a prison 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020) (quoting Farmer, 511 U.S. at 837). Put another way, “[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) (emphasis added). Importantly, too, prison officials do not “act with deliberate indifference when they provide medical treatment even if it is subpar or different from what the inmate wants.” Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018). It has long been established that “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Nor does an inmate have a constitutional right to a particular course of treatment. See, e.g., Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006).
Applying these legal principles to the well-pleaded facts here, the court concludes that Mr. Eckley's allegations are insufficient to establish that any individual Defendant possessed a culpable state of mind amounting to criminal recklessness.
Ms. Walters and Ms. Johnson. The well-pleaded facts show that Ms. Walters and Ms. Johnson provided responsive and timely care to treat Mr. Eckley's injury.
Within an hour of his exercise-induced injury, Mr. Eckley was seen by Ms. Walters, who ordered “STAT” x-rays and prescribed two medications to control his pain. The fact that prison officials were unable immediately to execute her order to transport Mr. Eckley to the Arkansas Valley Regional Medical Center demonstrates no mental culpability on Ms. Walters's part. Mr. Eckley has not alleged that Ms. Walters, as a nurse practitioner in the CCCF medical unit, was in a position to order that additional correctional personnel be brought to the facility to instantly transport him to the hospital; nor has he alleged that Ms. Walters could have transported him herself. Ms. Walters's assessment that Mr. Eckley would be “alright” to wait in the medical unit for a few hours, see Complaint at 7-where, obviously, he could be observed and tended to- reveals no criminally reckless disregard for his health and safety. Indeed, as discussed previously, he has alleged no substantial harm attendant on the few hours' delay between Ms. Walters ordering the x-rays and their being taken by hospital staff.
Neither may any inference of the requisite subjectively culpable mental intent be drawn from the time that passed between his x-rays, his appointment with an orthopedist, and his later surgery. Ms. Walters's had a follow-up examination of Mr. Eckley on February 22, 2022, four days after his injury. Ms. Walters specifically evaluated Mr. Eckley's pain level and documented that he was “tolerating pain with diclofenac and acetaminophen.” Complaint at 16. This fact negates any inference of intentional disregard to Mr. Eckley's pain on Ms. Walters's part, and her broader examination of Mr. Eckley's condition similarly repudiates a plausible finding of deliberate disregard akin to criminal recklessness. Ms. Walters took Mr. Eckley's vitals, recorded her observations of his condition, and conducted an analysis of his systemic functioning and found it normal. Id. at 16-17.
Likewise do Mr. Eckley's allegations concerning Ms. Johnson fail to demonstrate that she acted with intentional disregard for his health and safety. To begin with Mr. Eckley's allegations concerning the colloquy between Sergeant Villareal and Ms. Johnson upon Mr. Eckley's return from the hospital the evening of February 18, 2022, id. at 8, the court can draw from this purported encounter no inference of criminally reckless disregard on Ms. Johnson's part. Ms. Johnson-not a sergeant whose experience lies on the correctional side of the house- was the trained medical provider, and the court finds no plausible basis for inferring that a medical professional acted recklessly by declining to countenance a correctional officer's opinion about how best to care for an inmate. Too, Mr. Eckley fails to allege facts to support his speculative and wholly conclusory assumptions that Ms. Johnson had the authority to send him to the Territorial facility in Cañon City and that, if she had, he would have received superior care and faster access to surgery. While the court may properly disregard these conclusory and unsupported assertions and look only to whether the remaining factual allegations plausibly suggest liability, see Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012), they do not in any event indicate that Ms. Johnson possessed a subjectively culpable mental state amounting to deliberate indifference toward Mr. Eckley.
Nor do Mr. Eckley's remaining allegations plausibly show that Ms. Johnson acted with reckless disregard for his health and safety. The records appended to his Complaint reflect that, upon his return from the Arkansas Valley Regional Medical Center, Ms. Johnson obtained a report from a staff nurse at that facility and conveyed that information to Ms. Walters for further orders, which Ms. Johnson immediately implemented. Id. at 15. She evaluated Mr. Eckley, observed that he exhibited no outward signs of pain, and noted his insistence on returning to his housing unit that night-which she allowed him to do with a wheelchair and a cane. Id. Mr. Eckley alleges that, the very next morning, Ms. Johnson threatened to put him in solitary confinement for complaining about pain, id. at 9, but he does not allege that Ms. Johnson acted on this alleged threat (which the court assumes occurred, improbable though it is). Nor does Mr. Eckley allege that the threat actually deterred him from seeking further treatment for his pain, but only that he saw it as a “forced deterrent on treatment.” Id. Furthermore, Mr. Eckley does not allege that Ms. Johnson cut off his access to the pain medications Ms. Walters had prescribed for him just the day before, nor does he allege that he was unable to obtain these pain medications at any point prior to the date of his surgery.
If Mr. Eckley's point is that he was constitutionally entitled to narcotic pain medication, or the medication of his choice, that is not the law. See Henderson v. Fisher, 767 Fed.Appx. 670, 674 (10th Cir. 2019); see also, e.g., Vreeland v. Fisher, 682 Fed.Appx. 642, 649 (10th Cir. 2017) (where a prisoner is experiencing pain but has not been denied all pain medication, the choice of pain medication by the medical staff “simply does not demonstrate subjective deliberate indifference”) (citing Self, 439 F.3d at 1232); Gee, 627 F.3d at 1192 (holding that prisoner who was given pain medication for his headaches, albeit not the medication he desired, did not state an Eighth Amendment violation); Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (“Plaintiff's belief that he needed additional medication, other than that prescribed by the treating physician, . . . [is] insufficient to establish a constitutional violation.”).
To sum up, there are no well-pleaded, non-conclusory facts that would allow this court to infer that either Ms. Walters or Ms. Johnson approached Plaintiff's care with the “extraordinary degree of neglect” required to show deliberate indifference. 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.”). In so finding, the court emphasizes the undisputed timeline that emerges from the well-pleaded facts:
• February 18, 2022, at 10:45 a.m.: Plaintiff injures himself
• February 18, 2022, at 11:52 a.m.: Plaintiff seen in CCCF medical unit and x- rays ordered
• February 18, 2022, at 6:20 p.m.: X-rays taken at outside hospital
• February 22, 2022, at 8:30 a.m.: Medical record noting that appointment with outside orthopedic specialist had been scheduled for March 1, 2022
• March 1, 2022: Plaintiff seen by orthopedic specialist
• March 11, 2022: Surgery completed by this date
As noted above, a more accurate inference may be that Mr. Eckley had surgery before March 11.
As this timeline highlights, CCCF personnel succeeded in scheduling an appointment with an orthopedist within three days of Mr. Eckley's injury (two of the intervening days falling on a weekend), and his surgery took place within twenty-one days of the date of his injury. It is not absolutely clear from the pleading that CCCF personnel were responsible for scheduling the surgery, which appears more likely to have been set by the surgeon's office in conformity with the surgeon's schedule. But even assuming that it was the business of the prison to take the lead in scheduling, the timeline does not plausibly indicate a culpable state of mind on the part of Ms. Walters or Ms. Johnson or, for that matter, any Defendant. Mr. Eckley has not alleged that Ms. Walters or Ms. Johnson or any other prison official had the power to compel an insurance company to act more quickly to approve the surgery, see Complaint at 8, or to demand that an orthopedic surgeon in the community alter his or her schedule (and the schedule of a hospital operating room) to accommodate Mr. Eckley's preference to jump the line. Notably, the well-pleaded facts indicate that Mr. Eckley's surgeon, with obvious awareness of his patient's condition, also did not secure an earlier date for the surgery.
Mr. Eckley's conclusory attribution of reckless intent to Ms. Walters and Ms. Johnson also fails to account for his status as an incarcerated person. This court reasonably may infer that special security procedures must be followed in order for an inmate to be transported to outside medical appointments in a surgeon's office and to a surgery site where unprotected members of the public will be present. Common sense dictates that additional time is required to make arrangements to account for the hurdles attendant on implementing security measures at outside medical facilities for an inmate like Mr. Eckley. See Carbajal v. McCann, 808 Fed.Appx. 620, 630-31 (10th Cir. 2020) (“Determining whether a complaint contains well-pleaded facts sufficient to state a claim is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”) (quotation omitted). The complications associated with maintaining security protocols further negate a finding that Mr. Eckley's allegations are sufficient to show that Ms. Walters, Ms. Johnson, or any other prison official involved in the scheduling process for his outside appointments and surgery possessed the culpable mental state required to satisfy the subjective element of deliberate indifference.
While Mr. Eckley does not separately identify his crime or crimes of conviction, the medical records he attached to the Complaint include an assessment note of “MRD LIFE.” This court takes notice that the CDOC offender search website lists Mr. Eckley's sentence as 36 years to
At bottom, the primary inference this court reasonably can draw from Mr. Eckley's pleading is that he strongly disagrees with the course of care provided by Ms. Walters and Ms. Johnson. But his opinion that they could and should have acted faster, or ought to have prescribed a different pain-management regimen, does not demonstrate deliberate indifference. “[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 Corrs., 165 F.3d 803, 81110th Cir. 1999); see also Gee, 627 F.3d at 1192 (“Disagreement with a doctor's particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.”). The court therefore respectfully RECOMMENDS that the Motion to Dismiss the claims against Ms. Walters and Ms. Johnson pursuant to Rule 12(b)(6) be granted.
Ms. Carman. Recall Mr. Eckley's one-sentence allegation against Ms. Carman, asserting life and his parole eligibility date as September 21, 2082. See CDOC Offender Search (state.co.us). that she is the person who actually scheduled his March 1, 2022 appointment with the orthopedic surgeon. Complaint at 9. The analysis supporting dismissal of the Eighth Amendment claims against Ms. Walters and Ms. Johnson similarly compels dismissal of the Eighth Amendment claim against Ms. Carman: the well-pleaded facts fail to plausibly indicate that either the objective or subjective components of a deliberate indifference claim are satisfied. Here, again, the court respectfully RECOMMENDS that the Motion to Dismiss the claim against Ms. Carman pursuant to Rule 12(b)(6) be granted.
The court notes that it is unclear from the Complaint whether Mr. Eckley's allegations suffice to show that Ms. Walters or Ms. Johnson-both of whom directly provide care for CCCF inmates-personally played a role in the scheduling of outside medical appointments. But the court assumes in Mr. Eckley's favor that they did and finds that any such claim should be dismissed for the reasons stated herein.
Warden Goodrich. The Warden argues that Mr. Eckley “has failed to present any allegations [that the Warden] personally participated in any treatment decision regarding Plaintiff's medical care, or otherwise knew of any problems with transportation to the hospital” on February 18, 2022. Motion at 8. The court agrees.
“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. Eckley's pleading must contain well-pleaded, non-conclusory facts which plausibly show that each named defendant-including Warden Goodrich-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). The well-pleaded facts also “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). There are no allegations in the Complaint linking the Warden to the allegedly deficient medical care. Mr. Eckley's contention that the Warden “admitted” to the inmates that the prison was not always operating with its full complement of personnel-an explanation the Warden apparently provided in explaining why certain programs were not offered to the inmates, Complaint at 9-fails to plausibly establish that the Warden played any direct role in the medical decisions at issue here. Neither does it plausibly indicate any failure to supervise the medical personnel who did personally participate in Mr. Eckley's care.
In any case, even if there were sufficient allegations concerning the Warden's personal participation, the Complaint does not allege that the Warden himself possessed the culpable state of mind required for Mr. Eckley to prevail on his deliberate indifference claim-a mental state which requires personal awareness of the seriousness of his medical need. Such allegations are required because there is no respondeat superior liability under § 1983. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); see also Dodds v. Richardson, 614 F.3d 1185, 1199-1200 (10th Cir. 2010) (analyzing respondeat superior liability in Bivens and § 1983 actions after Iqbal, and concluding that plaintiffs must prove defendant supervisors “took some act with the constitutionally applicable state of mind that caused the alleged constitutional violation”). The assertion that the Warden was responsible for a “staff shortage”-assuming, generously, in Mr. Eckley's favor that the Warden has control over hiring in a prison run by a private company- does not evince the required state of mind on the Warden's part. Even if the prison were operating at low staff levels at the time of Mr. Eckley's injury, the allegations do not otherwise plausibly suggest that “understaffing” was causally connected to the scheduling of his medical care outside the prison. His appointment with the orthopedist was secured within three days of his injury and necessarily had to be scheduled in conformity with the physician's existing calendar. Just so with the determination of the date for his surgery. There is no basis for this court to infer that the surgery date was driven by the preferences of the prison, as opposed to the scheduling constraints of the physician and the hospital.In short, allegations about CCCF staffing levels, and the Warden's supposed responsibility for them, constitute “naked assertions devoid of further factual enhancement,” which are insufficient to support “the reasonable inference” that the Warden is liable under § 1983. Iqbal, 556 U.S. at 678 (cleaned up).
Mr. Eckley alleges that his x-rays were delayed the day of his injury due to a staff shortage, but again, he does not allege he suffered any long-term injury from that delay, and the records he attaches to the Complaint reflect that he was kept in the medical department where he could be observed.
Because Mr. Eckley has failed to plead facts that plausibly give rise to the inference that Warden Goodrich personally participated in the alleged deliberate indifference to his serious medical needs, or that he possessed the requisite mental state to violate the Constitution, this court respectfully RECOMMENDS that the Motion to Dismiss the Eighth Amendment claim against the Warden pursuant to Rule 12(b)(6) be granted.
* * *
In concluding its assessment that Mr. Eckley's Complaint fails to satisfy the well-established requirements for pleading deliberate indifference that violates the Eighth Amendment, the court cannot help but observe that it is unclear what more Defendants-or any other CCCF personnel-could have done for Mr. Eckley. No orthopedic surgeon works on-site at the prison, nor has Mr. Eckley plausibly alleged that an orthopedic surgeon in the community is at the beck and call of CCCF. However, the well-pleaded facts do allow this court to infer that no Defendant here closed or obstructed the gate through which Mr. Eckley passed en route to a prompt evaluation by an outside orthopedist who surgically repaired his injury within just ten days of the initial orthopedic consultation. Cf. Oxendine, 241 F.3d at 1279 (deliberate indifference may arise where a medical provider affirmatively denies treatment or access to a medical personnel who can provide treatment); but see Self, 439 F.3d at 1232 (a medical provider is not deliberately indifferent when she exercises her medical judgment as to whether to consult a specialist or perform more testing). Put simply, the facts here permit no inference of a deprivation of constitutional import.
II. Entity Liability Claim against CCCF
This court has found, for the reasons discussed above, that Mr. Eckley's claims of constitutional violations by the individual Defendants must be dismissed pursuant to Rule 12(b)(6). Therefore, the court necessarily must conclude that the municipal liability claim against CCCF also must be dismissed because Mr. Eckley has failed to plead an underlying constitutional violation by any prison official. See Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1150 (10th Cir. 2020) (recognizing that “[a] municipality may not be held liable where there was no underlying constitutional violation by any of its officers”) (quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)); see also, e.g., Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir. 1994) (“A claim of inadequate training, supervision, and policies under § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised.”); Aryee v. City & Cnty. of Denver, No. 22-cv-01745-NYW-NRN, 2023 WL 2787987, at *6 (D. Colo. Apr. 5, 2023) (“Plaintiff's failure to plausibly allege that Defendant . . . committed an underlying constitutional violation is fatal to his municipal liability claim”).
Defendants dispute that CCCF, as opposed to CoreCivic (the private corporation that owns and
Neither does the Complaint clearly identify any particular custom or policy of CCCF that Mr. Eckley contends was the “moving force” behind his injury. Arnold v. City of Olathe, Kan., 35 F.4th 778, 795 (10th Cir. 2022). The only allegation potentially touching on entity liability is that CoreCivic “runs and maintains Crowley County Correctional Facility in a[n] untimely manner,” despite the fact that it received “$5.41 million from the State of Colorado . . . to pay more money to the prison staff and to curve the high turn around of their staff.” Complaint at 9. However, there are no factual allegations supporting the conclusory contention that the facility is somehow run “untimely” because it lacks sufficient medical resources, save for Mr. Eckley's operates CCCF), is the proper entity defendant. Motion at 9. Despite CoreCivic having been terminated as a defendant in this action, the Complaint indicates that Mr. Eckley may consider CoreCivic a party even now. In any event, this confusion is of no legal consequence. Mr. Eckley has pleaded no plausible entity liability claim. Had he brought the claim against CoreCivic, it likewise would fail for the reasons set forth in this recommendation. allegation focused on his particular situation: that “Core Civic recklessly ran Crowley County Correctional Facility to the point that the Plaintiff's Emergency was intentionally diverted . . .” Id. (emphasis added). The Complaint does not include facts attempting to identify any other specific previous instances of conduct demonstrating the existence of any custom or policy of maintaining insufficient medical resources at CCCF, showing how such a custom or policy was connected to Mr. Eckley's own medical care, or establishing that CCCF “was deliberately indifferent to the possibility that such a custom or policy might result in constitutional deprivations.” See Estate of Alire by Alire v. Wihera, 675 F.Supp.3d 1201, 1214 (D. Colo. June 5, 2023), appeal filed, No. 23-1213 (10th Cir. July 3, 2023).
In sum, the Complaint makes no allegations that “give rise to an inference that [CCCF] itself established a deliberate policy or custom that caused [Plaintiff's] injuries. Consequently, the complaint ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Mocek v. City of Albuquerque, 813 F.3d 912, 934 (10th Cir. 2015) (quoting Twombly, 550 U.S. at 557). This court therefore respectfully RECOMMENDS that the Motion to Dismiss the entity liability claim be granted and that any entity liability claim be dismissed.
III. No Leave to Amend
Having found that Mr. Eckley has unsuccessfully pleaded his claims, the court must determine whether to recommend outright dismissal or permit him yet another opportunity to amend his pleading. In cases involving pro se litigants, the Tenth Circuit has found that courts should dismiss with leave to amend when there is a possibility the litigant can correct the defect in the pleading. Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). Dismissal without prejudice is preferable where the deficiencies are “likely the result of an untutored pro se litigant's ignorance of special pleading requirements[.]” Id. It is notable, however, that pro se litigants “are not insulated from the rule that dismissal with prejudice is proper for failure to state a claim[.]” Fleming v. Coulter, 573 Fed.Appx. 765, 769 (10th Cir. 2014). This is especially true where the litigant cannot succeed on the facts alleged. Id.
Mr. Eckley has amended his complaint six times. Despite these multiple opportunities to amend, and the lengthy and detailed allegations in the operative Fifth Amended Complaint, he has failed to plead any plausible claim. Given the unalterable timeline underlying his claims, there is little reason to believe that he would be successful on a future amendment. See Oxendine, 241 F.3d at 1275 (“We have stated that ‘[d]ismissal of a pro se complaint for failure to state a claim is proper only 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.'”) (quoting Perkins, 165 F.3d at 806). Therefore, this court RECOMMENDS that Mr. Eckley's claims against all Defendants be dismissed with prejudice.
CONCLUSION
Consistent with the foregoing, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss Plaintiff's Fifth Amended Complaint, ECF No. 62, be granted and this action be dismissed with prejudice and without leave to amend.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).