Opinion
Civil Action 19-cv-03610-WJM-MEH
12-11-2020
CHRISTOPHER WAYNE JONES, Plaintiff, v. BENT COUNTY CORRECTIONAL FACILITY, et al., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge
Before the Court are Defendants' Motions to Dismiss (ECF 84, 91, 95, 99). The motions have been referred to this Court for recommendation. The motions are fully briefed, and the Court finds that oral argument will not materially assist in their adjudication. Based upon the record herein and for the reasons that follow, the Court respectfully recommends that the motions be granted.
BACKGROUND
The events alleged in the Second Amended Complaint (ECF 79) (“SAC”) occurred from 2012 to 2019 during which Plaintiff was housed at different correctional facilities and saw different medical care providers. He complains that they provided improper medical care by treating him for mental health illness (which he denies he has) instead of Parkinson's disease (which he says is his actual underlying medical condition). For purposes of this ruling, the Court accepts as true the factual allegations-but not any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in his SAC. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (accepting as true a plaintiff's factual allegations for purposes of Fed.R.Civ.P. 12(b)(6) analysis).
I. Alleged Facts
A. Larimer County Jail
Plaintiff went into the Larimer County jail (“LCJ”) on October 24, 2012. EFC 79 at 4. At intake, when asked about any mental health issues, he reported a history of alcohol and opioid dependency. Id. He added that on several occasions when he was drunk, he tried cutting himself. Id. The last such occurrence resulted in a hospitalization. The hospital released him within a couple of days after he “showed no signs of mental illness.” Id. Plaintiff alleges that the three medical care providers who conducted the intake interview at the LCJ “confer[red] with one another with disregard to the facts, ” and each gave him “a different prognosis as to what was mentally wrong with [him].” Id. However, they did not actually give him “a direct diagnosis.” Id. They did not listen to his denial of mental illness or his preference not to take psychotropic medications. Id. Instead, they only took from his statements what they wanted. Plaintiff adds that his presentence investigation reported a diagnosis of “alcohol dependence and ruled [sic] out malingering psychosis, ” and that upon his arrival at LCJ, he “never did a urinalysis test for drugs or alcohol.” Id. at 9.
While at the LCJ, a doctor prescribed Zyprexa and Prazosin. Plaintiff complains that those medications caused him such side effects as hallucinations, dizziness, confusion, occasional incoherence, and constipation. Id. at 8. The side effects worsened during a month he spent at the Colorado Mental Health Institute (“CMHI”). Id. A psychiatrist at CMHI wrote a letter on January 2, 2013 to report that Plaintiff “does not have a mental disability or is developmentally disabled.” Id. at 10.
Plaintiff alleges he complained of impaired comprehension at a court hearing in April 2013. Id. at 8. No competency evaluation was ordered. Id. at 9. Plaintiff complains that psychotropic medications continued to be given without his consent and without real evidence of mental illness. Id. This remained so despite ongoing visits with medical care providers. Id. at 10. He alleges that the medications and the high dosage were causing neurological damage. Id.
B. Bent County Correctional Facility
Plaintiff arrived at the Bent County Correctional Facility (“BCCF”) in June 2013. During intake procedures, a psychiatrist examined Plaintiff and placed him on psychotropic medications, despite his denials of mental illness. Id. at 11. The psychiatrist gave no reason for why he prescribed these medications. Id. They produced undesirable side effects such as lack of motivation and fatigue. Id. He sent written medical complaints, or “kites, ” to clinical staff in hopes of halting them, but his complaints were ignored. Id. Plaintiff also told psychiatrists that he was “not required . . . by the courts” to take the psychotropic medications, but he remained medicated nonetheless. Id. at 12. Plaintiff alleges that taking them eventually resulted in “damage being done to [his] brain and nervous system[.]” Id. at 11.
By August 2013, Plaintiff's weight had increased from 180 to 220 pounds. Id. at 12. He felt lethargic, tired, and suicidal, and he experienced “shakes in [his] arms and legs, ” all of which he attributed to the medication. Id. Psychiatric staff continued to ignore his complaints. Id. Around that time, after hearing about his symptoms, a psychiatrist placed Plaintiff under a mental health watch. Id. He was sent to a cell without a window, bed, or bedding. Id. He was made to undress in front of both male and female correctional officers, put in a “turtle suit, ” and placed under around-the-clock monitoring. Id. Plaintiff stayed in this cell from an unspecified Friday until the following Monday, eating chips, bread, and “mystery meat” three times a day, without any fruits or vegetables. Id. at 13. Female prison staff helped monitor Plaintiff in the cell and saw him use the toilet. He was not allowed access to a toothbrush, toothpaste, deodorant, razors, shaving cream, or soap. Id. After his release from the cell, Plaintiff showered in cold water while male and female staff watched him. He had access to soap but no shampoo. Id.
Plaintiff left BCCF in September 2013 when he was transferred to the San Carlos Correctional Facility (“SCCF”). Id.
C. San Carlos Correctional Facility
Plaintiff raises the same complaints about his medical care at SCCF. Plaintiff alleges that SCCF medical staff kept him on psychotropic medications contrary to his requests to stop them, denials of mental health condition, and complaints of shakes in his hands and legs. Id. at 13.
D. Arkansas Valley Correctional Facility
In January 2014, Plaintiff was transferred to the Arkansas Valley Correctional Facility (“AVCF”). Id. at 15. Defendant Tina Medina (“Ms. Medina”), a mental health provider, performed the intake assessment. Id. at 15. Ms. Medina ignored his denial of having a mental health condition. Id. In February 2014, Plaintiff had a video conference with a psychiatrist, Defendant Dr. John Skulstad (“Dr. Skulstad”). Id. Dr. Skulstad likewise ignored his denial of having a mental health condition and instead increased the dosage of the medications (Geodon and Remeron). Id. Dr. Skulstad told Plaintiff that the medications would “control the side effects which [he] had mentioned[, ]” which included “increased hallucinations, dizz[i]ness, weight gain[, ] and shakes in [his] legs and hands.” Id. Plaintiff attributes those symptoms to the early onset of Parkinson's, which in turn he attributes to the neurological damage that the medications caused. Id.
Ms. Medina allegedly threatened Plaintiff with “class 1 writeups” if he did not take his medications, and she told him that they were court-ordered, although he received no notice of such order. Id. Between 2014 and 2016, Plaintiff's condition did not improve, and medical staff “refused any treatment” despite “knowing that early Parkinson[']s” had begun. Id. In August 2016, Dr. Skulstad adjusted his medications. He continued the “high dose of Geodon”; stopped the Remeron, Zoloft, and Buspar; added Neurontin; and gave an injection. Id. at 16. Ms. Medina “approved what Dr. Skulstad was doing.” Id.
Sometime in 2017, Plaintiff's appellate attorney notified him that there was no court order requiring psychotropic medications. Id. Plaintiff informed Dr. Skulstad, but he “refused to listen.” Instead, Dr. Skulstad adjusted his medications again, keeping “the same dose of Geodon”; stopping the Neurontin; and starting Tegretol. Id. By February 4, 2018, Plaintiff no longer was taking any psychotropic medications. Id. at 16. He had gone “cold turkey” with his attorney's help. Id. However, Dr. Skulstad still ordered Ms. Medina and other staff to monitor him to “prove [that he] was mentally ill.” Id. By May 2018, Plaintiff was manifesting no mental health symptoms despite being off the medication. Id. However, he was experiencing tremors in his face, hands, and legs. Id.
Around that time, Plaintiff's condition “went downhill.” His “walking slowed to a snail['s] pace, [his] knees locked up constantly, the tremors [he] had worsened[, ] and going up the stairs to the third tier was getting impossible.” Id. at 16-17. On July 19, 2018, when Plaintiff was sent temporarily to the Colorado Territorial Correctional Facility (“CTCF”) for medical treatment, Dr. Skulstad ordered a “mental health watch[.]” Id. at 17. He was “stripped of [his] clothes except [for his] boxers and t-shirt” and staff “had to use force to hold [him] up.” Id. He underwent “multiple blood tests, ” a urinalysis, and an “x-ray on [his] stomach and sides.” Id. Plaintiff regards these tests as “unnecessary” because they “had nothing to do with [his] brain or neurological issues.” Id. Plaintiff alleges bruising from staff physically holding him upright. Id.
Plaintiff saw a nurse practitioner, Defendant Regina Deringer (“Ms. Deringer”), on July 18, 2018 for neurological tests because of mobility problems. Id. at 17. Plaintiff alleges that Ms. Deringer did not help him get on the examination table and showed no sympathy for the resulting pain. Id. Ms. Deringer sent Plaintiff back to CTCF for more tests. Id. Plaintiff also alleges that he was “manhandled” into a van that was not ADA compliant. Id. At CTCF, Dr. Skulstad placed him under a mental health watch. Id.
On July 23, 2018, Plaintiff saw another psychiatrist, Dr. Walsh, who diagnosed “early stages [of multiple sclerosis] or Parkinson[']s” and prescribed thiamine to “help slow it down.” Id. Dr. Walsh informed Plaintiff that Dr. Skulstad had restarted two psychotropic medications at high doses. Dr. Walsh cancelled them and stated that Plaintiff had “no mental health issues.” Id. Dr. Walsh cleared Plaintiff's return to AVCF. Id.
On August 2, 2018, Plaintiff saw Ms. Deringer for neurological tests. He alleges that he had been using a wheelchair since July but that medical staff kept taking it away, saying that he was faking his condition. Id.
On August 7, 2018, Ms. Medina “called [Plaintiff] over for a mental health [appointment].” Id. at 18. Staff took his wheelchair away from him, and he was “forced to walk” to the appointment despite his limited mobility. Id. at 18. When he arrived, “[Ms.] Medina deliberately cancelled” the appointment, which meant he had to walk back to his cell, with resulting “great pain and even more damage to [his] body.” Id.
On August 15, 2018, Ms. Deringer approved “a wheelchair, walker, and a OCA.” Id. at 18. She now recognized that he had “a neurological disease and prescribed Baclofen.” Id. By August 16, 2018, he began to have headaches which caused dizziness, nausea, and light sensitivity. Id.
On August 20, 2018, he was taken to a hospital (St. Mary Corwin) for radiographs. Plaintiff complains that he was transported in a van that was not ADA compliant. Hospital staff told him that he had “a trait of Parkinsons's Disease that was caused by psychotropic medication.” Id. Next, he was sent to Penrose Hospital. Id. Staff diagnosed Plaintiff as having a mental health condition, not Parkinson's. Id. Also at Penrose Hospital, a black spot was found on his brain, and he developed bedsores. Id. Plaintiff returned to AVCF on August 28, 2018. The Sinemet medication that Penrose Hospital had prescribed was stopped, and Remeron was restarted. Id.
Correctional officers took his wheelchair away on September 10, 2018, explaining that he had been medically cleared to walk. Id. A nurse threatened to report him for abusing medication and for faking mobility problems. Id. Plaintiff was not able to make a physical therapy appointment because an ADA-compliant van was unavailable. Id.
On September 19, 2018, Ms. Deringer accused Plaintiff of faking his medical problems and said he has only anxiety. Id. at 19. She also accused him of not taking his Remeron medication and refusing to go to physical therapy. Id. Ms. Deringer ceased all physical health care and referred him to Dr. Skulstad. Plaintiff complains that Ms. Deringer made those accusations in an abusive way and unlawfully shared his medical information with Dr. Skulstad. Id.
Plaintiff says that he had his first physical therapy session on October 23, 2018. Id. He was transported in an ADA-compliant van. Id. He alleges that his physical therapist agreed with what the St. Mary Corwin Hospital staff had said about his condition. Id.
Plaintiff last saw Dr. Skulstad on November 21, 2018. He complains that Dr. Skulstad “asked medical questions relating to medical med[ications]” about which he had “no right” to ask. Id. at 19. He alleges that it was improper for Dr. Skulstad to advise on medical issues, and that his questions constituted a “[HIPAA] violation.” Id. Moreover, he claims that speaking to Dr. Skulstad about his medical needs constituted “improper care [which] gave [him] no access to any treatment[.]”
On February 1, 2019, Plaintiff was transferred to CTCF. Id.
E. Colorado Territorial Correctional Facility
Plaintiff's remaining allegations concern Defendant Jane Gilden (“Ms. Gilden”), a nurse practitioner at CTCF. Plaintiff complains that no medical or mental health examination was given upon his arrival and about the two-week delay before his medical records arrived. Id. Plaintiff accuses Ms. Gilden of making no ADA accommodations and of being unknowledgeable about Parkinson's. Id.
He alleges that he suffered two mini-strokes and multiple falls in 2019. Id. He contends that Ms. Gilden “had refused to do any medical treatment in 2019.” Id. Plaintiff saw a psychiatrist, Dr. Teally, who told him that all of his “medical care was under psychiatry and referred [him] back to [Ms. Gilden].” Id. Plaintiff complains that Ms. Gilden refused to monitor (or be concerned about) his weight loss; ignored his concerns; ignored his requests to see a neurologist and optometrist for Parkinson's-related examinations; denied his request for medical shoes for his neuropathy complaint; and denied him the opportunity to sign a DNR. Id. at 19-20. Lastly, Plaintiff complains about “the abuse of no improvements to get [him] out of the chair, ” which the Court interprets to mean that his health had not improved to justify denying him a wheelchair. Id. at 20.
II. Claims for Relief
Plaintiff initially filed this lawsuit on December 19, 2019. ECF 1. In the SAC, he asserts two main categories of constitutional violations for the above events. He alleges the violation of his First Amendment right to free speech arising from Defendants' ignoring his denials of having mental health illness and his concerns about Parkinson's. Next, he alleges the deliberate indifference to his medical needs in violation of the Eighth Amendment. The Court assumes that Plaintiff raises these claims pursuant to 42 U.S.C. § 1983.
In his Response (ECF 111 at 6), Plaintiff abandoned his Fourteenth Amendment claims because they merge into his Eighth Amendment claims.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “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.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Iqbal, 556 U.S. at 679-80. Second, a court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. See id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. See Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [A] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interprets this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). That does not mean, however, that a court should “assume the role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (“we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded” (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989))). Moreover, a court may dismiss a complaint without an opportunity to amend if “it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110).
ANALYSIS
I. First Amendment
The government generally may not restrict someone's expression on the basis of its message, ideas, subject matter, or content. See Brandt v. City of Westminster, 300 F.Supp.3d 1259, 1266 (D. Colo. 2018). A prisoner retains his First Amendment rights to the extent they are consistent with his incarcerated status and legitimate penological objectives. See Hudson v. Palmer, 468 U.S. 517, 523 (1984). However, Plaintiff's First Amendment claims do not concern any infringement of his expression. Indeed, the SAC shows that he did have the opportunity to speak with his medical care providers at the various appointments and intake screening sessions.
Instead, the essence of Plaintiff's First Amendment claims is that the Defendant medical providers did not take action consistent with what he was saying (his denials of having a mental illness and his preference not to take psychotropic medications) and pursued a contrary course of treatment. His grievance therefore implicates the Eighth Amendment, not the First Amendment, and as such, becomes part of his deliberate indifference to medical needs claims.
II. Statute of Limitations
BCCF, Ms. Medina, and Dr. Skulstad argue that Plaintiff's lawsuit is barred by the two-year statute of limitations for Section 1983 claims. Constitutional violation claims under 42 U.S.C. § 1983 “accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. The claim accrues when the constitutional injury occurs, not when the consequence of that constitutional injury . . . manifested itself.” Gross v. Samudio, 630 Fed.Appx. 772, 776 (10th Cir. 2015) (internal quotations marks and citations omitted); see also Coleman v. Morall, 64 Fed.Appx. 116, 117-19 (10th Cir. 2003) (holding that a pro se prisoner's Section 1983 claim against a physician accrued when the physician forcibly administered anti-psychotic medications, rather than when the prisoner later developed a medical condition caused by the medications).
“The forum state's statute of limitations for personal injury actions governs civil rights claims[.]” Brown v. Unified Sch. Dist. 501, 465 F.3d 1184, 1188 (10th Cir. 2006). Applying Colorado's general tort statute, Colo. Rev. Stat. § 13-80-102, to this case shows that there is a two-year statute of limitations for Plaintiff's Section 1983 claims. See Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994); see also Coleman, 64 Fed.Appx. at 118-19 (holding that a Colorado pro se prisoner's Section 1983 claims against a physician were barred by the two-year statute of limitations).
In response, Plaintiff argues that he has an “ongoing medical condition that requires long term care” and was “under the watch of defendants [where his] issue could [have] been managed sooner.” ECF 111 at 1. Construing that argument liberally in his favor, Plaintiff may be arguing that the continuing violations doctrine permits the inclusion of events before December 19, 2017. “The continuing violation doctrine was developed in the Title VII employment law context, ” Vasquez v. Davis, 882 F.3d 1270, 1277 (10th Cir. 2018), and acknowledges that “a plaintiff can experience continuing violations or wrongs such that a claim accrues for limitations purposes at the culmination of the continuous injury[, ]” Burkley v. Corr. Healthcare Mgmt. of Okla., Inc., 141 Fed.Appx. 714, 716 (10th Cir. 2005) (emphasis in original). However, the Tenth Circuit hesitates to apply the continuing violation doctrine to Section 1983 claims and emphasizes how the “doctrine is triggered by continuing unlawful acts but not by continuing damages from the initial violation.” Vasquez, 882 F.3d at 1277 (holding that, even if the court applied the continuing violation doctrine, the prisoner's Section 1983 claim would not be revived because the prisoner had not seen the defendants within the applicable two-year period); see also Vreeland v. Fisher, 682 Fed.Appx. 642, 646 (10th Cir. 2017) (upholding district court decision not to apply the continuing violation doctrine to a prisoner's Section 1983 claim when the triggering event occurred prior to the applicable two-year period); cf. Burkley, 141 Fed.Appx. at 716-17 (“assuming without deciding” that the continuing violations doctrine applies but nonetheless declining to find a valid Section 1983 deliberate indifference claim when the prisoner did not allege sufficiently serious injuries). Consequently, the continuing violations doctrine does not permit the Court to consider the events that occurred before December 19, 2017.
A. BCCF
Plaintiff does not provide exact dates when BCCF staff took the actions that allegedly violated his constitutional rights. EFC 79 at 10-13. However, he does say that in September 2013, he left BCCF on a transfer to SCCF. Id. at 13. In other words, all of Plaintiff's allegations concerning BCCF took place before October 2013. That meant he had until September 2015 at the latest to bring a Section 1983 claim.
Moreover, he could have sought Section 1983 relief at that earlier time. Plaintiff already knew or had reason to know of the grievance concerning BCCF before October 2013. He alleges that when a psychiatrist prescribed him medication, he denied having a mental illness, sent “kites” to medical staff to object, and directly told psychiatrists that he was “not required . . . by the courts” to take them. Id. at 10-12. Although Plaintiff alleges that he later developed adverse health conditions from the medications, id. at 11-12, the Section 1983 claim accrued at the time when the medications were prescribed or ingested at BCCF, which was before October 2013.
However, it was not until December 19, 2019, more than two years later, when he sued BCCF. Consequently, his claims against it are time-barred.
B. Ms. Medina and Dr. Skulstad
Ms. Medina and Dr. Skulstad also argue that Plaintiff's Section 1983 claims against them are barred by the two-year statute of limitations. As the Court explains above, the events that occurred before December 19, 2017 generally are time-barred. To that extent, the statute of limitations applies. However, it does not apply to events that occurred on December 19, 2017 or later, and the SAC leaves open the possibility that Plaintiff took psychotropic medication for a short period afterwards. Therefore, the Court will consider claims that relate to that more recent time period.
III. Qualified Immunity
Qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly violative at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face the other burdens of litigation. See Ahmed v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal quotations and citations omitted). The privilege is an immunity from suit rather than a mere defense to liability. See id. The defense of qualified immunity requires that “(1) a reasonable jury could find facts supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant's conduct.” Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020). The Supreme Court in Pearson v. Callahan emphasized that courts have the discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236 (2009); see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009). Here, the Court begins by analyzing whether Plaintiff plausibly alleges a violation of a constitutional right.
A. Deliberate Indifference to Medical Needs
In both his SAC and Response (ECF 111), Plaintiff's primary claim concerns the Eighth Amendment and the deliberate indifference to a prisoner's medical needs.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (internal citation omitted). A claim for deliberate indifference must satisfy both an objective and a subjective component. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The objective component is met if “the harm suffered is sufficiently serious to implicate the Cruel and Unusual Punishment Clause.” Id. (citation and quotation marks omitted). “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.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal citation omitted).
To prevail on the subjective component, a prisoner must show that the defendant knew of a substantial risk of harm but still disregarded that risk by taking no reasonable measures to abate it. See Spradley v. LeFlore Cnty. Detention Center Pub. Trust Bd., 764 Fed.Appx. 692, 699 (10th Cir. 2019). The inadvertent failure to provide adequate medical care does not give rise to an Eighth Amendment violation. Id. (quoting Estelle, 429 U.S. at 105-06). The Supreme Court has held that “a prison official must have a sufficiently culpable state of mind” to violate the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation marks and citation omitted). “[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
1. Dr. Skulstad
There are four potential Eighth Amendment claims that Plaintiff appears to assert against Dr. Skulstad that are not time-barred. The Court analyzes each in turn, beginning with the allegation about unneeded psychotropic medications. The Court assumes that the relevant actions (of prescribing, ingesting, or both) occurred between December 19, 2017 and February 2018. To satisfy the subjective prong, Plaintiff must show that Dr. Skulstad knew he had no mental health condition but prescribed mental health medications anyway. However, he does not establish such knowing disregard. His claim does not rise above the level of a disagreement over the diagnosis and the appropriate course of treatment, and that is insufficient to state a plausible deliberate indifference claim. See Salary v. Goff, 572 Fed.Appx. 668, 670 (10th Cir. 2014); see also Duran v. Donaldson, 663 Fed.Appx. 684, 690 (10th Cir. 2016) (holding that an inmate's opinion that his doctor “should have been prescribed different medications” was insufficient to establish deliberate indifference). “So long as a medical professional provides a level of care consistent with the symptoms presented by the inmate, absent evidence of actual knowledge or recklessness, the requisite state of mind cannot be met.” Self v. Crum, 439 F.3d 1227, 1233 (10th Cir. 2006). Plaintiff also alleges that in May 2018, Dr. Skulstad “had seen [that he] had or never did have any mental health issues.” ECF 79 at 16. However, by that point, Plaintiff already had stopped taking the medication. He says that “[b]y February 2018 on the 4th [he] was no longer on any psych meds.” Id.
Second, Plaintiff alleges that Dr. Skulstad violated his Eighth Amendment rights by “re-prescrib[ing] high doses of” mental health medication around July 23, 2018. ECF 79 at 17. However, Dr. Walsh, a different psychiatrist, cancelled this new prescription before Plaintiff ingested any of it. Id. Thus, Plaintiff's allegations do not satisfy the objective component required for deliberate indifference because he suffered no harm.
Third, Plaintiff alleges that he suffered Eighth Amendment violations on July 19, 2018, when he visited CTCF. ECF 79 at 17. Dr. Skulstad placed him on “mental health watch” for which he was “stripped of [his] clothes except [for his] boxers” to undergo x-rays and other tests that had “nothing to do with [his] brain or neurological issues, ” and received “black and blue bruises” from “John Doe staff” physically holding him upright. Id. To hold him liable, Plaintiff must show that Dr. Skulstad personally participated in the alleged violation. See Gray v. Sorrels, 744 Fed.Appx. 563, 568 (10th Cir. 2018); see also Estate of Roemer v. Johnson, 764 Fed.Appx. 784, 790-91 (10th Cir. 2019) (noting that “a plaintiff who brings a constitutional claim under § 1983 can't obtain relief without first satisfying the personal-participation requirement”). The SAC shows Dr. Skulstad's only involvement in this incident was to request the “mental health watch.” ECF 79 at 17. That alone does not constitute an Eighth Amendment violation, especially when it amounts to a disagreement over the appropriate course of treatment. Moreover, Dr. Skulstad did not personally participate in the other alleged violations that took place at CTCF, when “John Doe staff” caused Plaintiff's bruises and “John Doe medical staff” conducted the “unnecessary” medical tests. Id. Dr. Skulstad's lack of personal participation is an additional reason why Plaintiff does not plead a plausible Eighth Amendment violation on this particular claim.
Plaintiff's fourth claim is that speaking with Dr. Skulstad about his medical needs itself constituted “improper care [which] gave [him] no access to any treatment[.]” ECF 79 at 19. Presumably, he means that Dr. Skulstad, who is a psychiatrist, was not qualified to “advise [him] on medical issues” of a physical health nature. Id. Liberally construed, he appears to allege that Dr. Skulstad acted as a “gatekeeper” to medical care that Plaintiff needed. “A prison medical professional who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” Mata, 427 F.3d at 751 (internal quotations and alterations omitted). To succeed on this theory, a plaintiff must show that a gatekeeper knew “a substantial risk of harm exist[ed]” to satisfy the subjective component of the deliberate indifference analysis. See id. Even if the Court assumes Dr. Skulstad was acting in a gatekeeper role, Plaintiff does not specify what treatment he needed at that time. Instead, he speaks in general terms of “improper care [that] gave [him] no access to any treatment if [he] was to fall like [he has].” ECF 79 at 19. See Walker v. Hickenlooper, 627 Fed.Appx. 710, 718 (10th Cir. 2015) (affirming the dismissal of a deliberate indifference claim because the plaintiff “did not identify any facts in the amended complaint suggesting that [the alleged gatekeeper] prevented further medical treatment”). Therefore, the Court finds that Plaintiff did not sufficiently allege a claim of deliberate indifference against Dr. Skulstad under the gatekeeper theory.
2. Ms. Medina
The Court considers whether Plaintiff states a plausible claim that Ms. Medina acted with deliberate indifference to his medical needs. Only one alleged incident involving Ms. Medina occurred after December 19, 2017. On August 7, 2018, Ms. Medina “called [Plaintiff] over for a mental health [appointment.]” ECF 79 at 17-18. Because prison staff had taken his wheelchair, he had to walk to the appointment. Id. at 18. When he arrived, he learned that Ms. Medina had “deliberately cancelled the appointment[, ]” thereby forcing him to walk needlessly to the appointment and back. Id. The walking caused “great pain and even more damage to [his] body.” Id.
Plaintiff must show that Ms. Medina had a culpable mental state to satisfy the subjective prong of the deliberate indifference cause of action. Although he alleges that Ms. Medina “deliberately cancelled” the appointment, he does not allege that she “knew [he] faced a substantial risk of harm and disregarded that risk[.]” See Vasquez, 882 F.3d at 1275. Primarily, he does not allege how she knew that he lacked a wheelchair on that day and thus how cancelling the appointment would cause him pain from walking. Without such facts, Plaintiff does not state a plausible claim of deliberate indifference against her. See Self, 439 F.3d at 1231 (noting that 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”); see also Barron v. Pohlman, 122 Fed.Appx. 416, 420 (10th Cir. 2005) (affirming the dismissal of a deliberate indifference claim against a prison doctor who was unaware that the prisoner had re-injured his shoulder and needed treatment); Holt v. McBride, 539 Fed.Appx. 863, 866-67 (10th Cir. 2013) (affirming the dismissal of a deliberate indifference claim for removing the prisoner's lower bunk restriction because the doctor was unaware of the side effects that the prisoner's new medication was causing).
Nor does Plaintiff meet the objective element. Plaintiff does allege impaired mobility, and that having to walk to the clinic caused him pain. However, he alleges no additional information from which the degree of seriousness needed to satisfy the objective element reasonably may be inferred. He sought no medical care for that incident, and he alleges no other occasion when walking caused him pain.
The SAC states no plausible Eighth Amendment claim against either Dr. Skulstad or Ms. Medina. Therefore, the Court recommends that their Motion to Dismiss be granted both pursuant to Rule 12(b)(6) for the failure to state a claim and their assertion of qualified immunity.
3. Ms. Deringer
Ms. Deringer is a nurse practitioner at AVCF. Plaintiff's allegations against her are that she: (1) did not help him to get on the examination table and showed no sympathy for his discomfort, (2) administered neurological tests rather than having a specialist do it, (3) was late to recognize that he had a neurological disease, (4) prescribed Baclofen which caused side effects, and (5) stated that Remeron is not a psychotropic medication. Plaintiff also complains that she accused him of faking his condition, not taking his medication (Remeron), and not attending physical therapy. Lastly, Plaintiff complains that Ms. Deringer ceased all of his physical medical care and referred him back to Dr. Skulstad.
Plaintiff's allegations against Ms. Deringer do not rise above mere disagreement with the course of treatment, and as a result, he does not plead a plausible claim against her. Regarding the allegation that she did not help him to get on the examination table, it is too conclusory to state a plausible claim. Plaintiff gives no additional information from which either element of a deliberate indifference to a known medical need reasonably could be inferred. Plaintiff does not demonstrate an objective impairment of a sufficient degree that would have hindered his ability to get on the examination table. Nor does he demonstrate Ms. Deringer's subjective awareness of that impairment. Plaintiff mentions no other difficulty with examination tables or that he sought treatment as a result of this particular incident. As he pleads it, it is a complaint about Ms. Deringer's helpfulness or sympathy, but that does not state an Eighth Amendment violation. Therefore, for reasons similar to the appointment cancellation claim against Ms. Medina, Plaintiff does not plead the examination table grievance in a way that meets the required elements of the claim, and, consequently, Ms. Deringer is entitled to qualified immunity.
4. Ms. Gilden
Ms. Gilden is a nurse practitioner at CTCF, and the Defendant who treated Plaintiff most recently. Plaintiff's Eighth Amendment claim against Ms. Gilden consists of a variety of apparently unrelated matters and incidents (although he makes no mention of psychotropic medications in this part of the SAC). For several of them, he pleads no connection to Ms. Gilden at all. He does not explain how Ms. Gilden is at fault for the failure to conduct an intake medical screen when he first arrived or the two-week delay before his medical records arrived. He does not plead how Ms. Gilden was involved with the mini-stroke or fall incidents. To the extent he perceives an ongoing need for a wheelchair, he does not explain how that issue concerns her. The denial of the opportunity to sign a DNR has no direct connection to any immediate medical need.
Other matters that he lists do appear to concern Ms. Gilden in some way. However, he pleads nothing to show how they implicate the Eighth Amendment. Plaintiff criticizes Ms. Gilden for not understanding what Parkinson's is and for generally not taking his concerns seriously. This includes declining to monitor his weight loss, to refer him to other specialists, and to fill his request for medical shoes. He complains that Ms. Gilden did not take his Parkinson's complaint seriously and did not pursue the course of action that he requested.
As with his claims against the other Defendants, Plaintiff's claims against Ms. Gilden amount to a disagreement with the medical care provided, but that does not state a deliberate indifference claim. See Callahan, 471 F.3d at 1160. His allegations do not rise to the level needed to state a constitutional violation. He does plead his personal belief that he has Parkinson's; that the symptoms of such are obvious; and that some medical care providers have agreed that he has traits of Parkinson's. However, he does not plead the existence of any physical health condition that was objectively serious enough to mandate treatment or to necessitate medical attention. Nor does he plead how Ms. Gilden was subjectively indifferent to the serious need for Parkinson's treatment. Although he alleges that Ms. Gilden refused to treat him for it, he adds that he did see a psychiatrist, Dr. Teally, who “stated all [of his] medical care was under psychiatry and referred [him] back to [Ms. Gilden].” ECF 79 at 19. Thus, the medical opinion at the time was that he had a mental, rather than physical, health condition. In failing to adequately plead his claims, Plaintiff has not stated a constitutional violation against Ms. Gilden. Thus, the Court recommends dismissing the claims against her and finding that she is entitled to qualified immunity. [
IV. ADA
Plaintiff does not assert as a separate cause of action a violation of the Americans with Disability Act (“ADA”), 42 U.S.C. § 12132. However, he does mention his ADA rights at different places in the SAC. He does so in reference to his medical condition, and to that extent, it merges with this Eighth Amendment claims. Nevertheless, to the extent the SAC could be construed as asserting an ADA claim, it would be subject to dismissal. There is no individual liability under the ADA. See A.B. v. Adams-Arapahoe 28J Sch. Dist., 831 F.Supp.2d 1226, 1254 (D. Colo. 2011).
Plaintiff only once mentions the ADA in reference to BCCF, which as an entity is potentially liable under the ADA. He states only that the ADA “prohibits discrimination in public services on the basis of disability” without expounding further. ECF 79 at 12. The Court finds that, similar to his Section 1983 claims, there is a two-year statute of limitations period from when he knew or should have known about actions constituting the alleged ADA violations. Quinn v. Univ. of Okla., 276 Fed.Appx. 809, 810-811 (10th Cir. 2008); Ulibarri v. City & Cty. of Denver, 742 F.Supp.2d 1192, 1213 (D. Colo. 2010). Thus, the above statute of limitations analysis regarding the Section 1983 claims applies equally to any ADA claims Plaintiff makes against BCCF.
Even if it were not time barred, Plaintiff does not plead the elements against BCCF. To state a Title II ADA claim against a public entity, Plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability. See Robertson v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007). Plaintiff pleads none of those elements.
Therefore, to the extent Plaintiff asserts any ADA violations, those claims should be dismissed.
V. HIPAA
As with the ADA, Plaintiff makes only incidental mention of “HEPA” violations which the Court construes to mean the Health Insurance Portability and Accountability Act (“HIPAA”). He claims that Ms. Deringer violated HIPAA when she shared medical information with Dr. Skulstad on September 19, 2018 and when Dr. Skulstad asked him questions about his medical condition and needs on November 21, 2018. ECF 79 at 19. However, there is no private right of action for the alleged disclosure of confidential medical information. See Thompson v. Larned State Hospital, 597 Fed.Appx. 548, 550 n.1 (10th Cir. 2015). Therefore, any HIPAA violation that Plaintiff may assert against Ms. Deringer or Dr. Skulstad should be dismissed.
VI. No Leave to Amend
Dismissal of a case is a harsh remedy, and a pro se litigant's pleadings are to be construed liberally. As a general rule, therefore, the Court may give such a litigant the opportunity to amend the complaint to cure a pleading defect. See Hall, 935 F.2d at 1109-10; Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). However, no such leave to amend is warranted here given the nature of the defects. First, Plaintiff's claims are barred by the applicable statute of limitations. To the extent there is no statute of limitations bar, Plaintiff fails to state any plausible constitutional violation even after construing his allegations liberally in his favor. These defects remain after several prior opportunities to frame his allegations. ECF 8, 71, 73. Consequently, it would be futile to grant Plaintiff leave to file a third amended complaint. See Curley, 246 F.3d at 1281-82; Fleming v. Coulter, 573 Fed.Appx. 765, 769 (10th Cir. 2014).
CONCLUSION
Underlying all of the SAC claims is Plaintiff's objection to receiving treatment for mental health illness rather than for Parkinson's. That issue goes back to October 2012 when he was detained at LCJ. Even if he disagrees with the diagnosis, his allegations show that he has received medical care over that full span of time. He has been examined by several different mental health care providers, and he also received medical care for his complaints of having Parkinson's or related symptoms. Consequently, Plaintiff shows no denial of medical care. That the care is not the kind that he believes he should be receiving is a matter of diagnosis and differing medical opinion. Plaintiff therefore states no plausible claim of deliberate indifference to medical needs as case law strictly defines that constitutional violation.
Accordingly, the Court respectfully RECOMMENDS that BCCF's Motion to Dismiss [filed August 28, 2020; ECF 84] be granted on statute of limitations grounds; AVCF Defendants' Motion to Dismiss [filed September 1, 2020; ECF 99] be granted on statute of limitation grounds, qualified immunity, and pursuant to Rule 12(b)(6) for the failure to state a claim for relief; and Ms. Deringer's Motion to Dismiss [filed August 31, 2020; ECF 91] and Ms. Gilden's Motion to Dismiss [filed September 1, 2020; ECF 95] be granted pursuant to Rule 12(b)(6) for the failure to state a claim for relief. The Court respectfully RECOMMENDS that the SAC be dismissed with prejudice and without leave to amend, and that this case be closed.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a
Because the Court finds that Defendants are entitled to qualified immunity because Plaintiff fails to state a constitutional violation against them, the Court does not address whether there is clearly established law.
de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); In re Garcia, 347 F. App=x 381, 382-83 (10th Cir. 2009).