McMinn v. Dodson et al

Filing 149

ORDER. The 87 Recommendation of United States Magistrate Judge is accepted. Plaintiff's 39 Motion to Amend and Re-instate is denied. The 132 Motion for Status on Plaintiff's Motion to Amend and Reinstate Defendants (Doc. #39) is denied as moot. By Judge Philip A. Brimmer on 9/14/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01511-PAB-KMT
GLENN McMINN,
Plaintiff,
v.
S.C.O. ROBERT DODSON and
ALLEN BIRT,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) [Docket No. 87] filed on
January 17, 2012. The magistrate judge recommends that the Court deny plaintiff’s
motion to amend [Docket No. 39] his complaint. On February 7, 2012, plaintiff Glenn
McMinn filed timely objections to the Recommendation [Docket No. 95]. Therefore, the
Court will “determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3).1
The Recommendation determined that plaintiff’s motion to amend was futile
because it was conclusory, failed to allege specific facts showing the personal
participation of the defendant wardens, and did not show that the medical professionals

1

The recommendation contains a detailed statement of the case with which no
party has taken issue. In light of plaintiff’s pro se status, the Court reviews his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991).

at Bent County Correctional Facility (“BCCF”) were deliberately indifferent to his medical
needs. Docket No. 87 at 4-8. In addition, the Recommendation determined that
plaintiff could not sustain a claim against Bent County Recycling (“BCR”) because his
amended complaint was insufficient to satisfy the requirements of Monell v. Dep’t of
Social Servs., 436 U.S. 658 (1978). Id. at 2. Plaintiff objects to the Recommendation
and argues that he should be allowed to amend his complaint to include the
owners/operators of BCR, Warden Brigham Sloan, and the medical professionals at
BCCF. See Docket No. 95.
Rule 15(a)(2) of the Federal Rules of Civil Procedure instructs courts to “freely
give leave [to amend] when justice so requires.” Id. However, a court may deny leave
to amend a complaint where the amendments would be futile. Jefferson Cnty. School
Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). A
proposed amendment is futile if the complaint, as amended, would be subject to
dismissal. Id.
In his objections, plaintiff clarifies that his amended complaint does not raise an
Eighth Amendment claim against Bent County, Colorado, but rather the “individuals
who deal with the day to day operations” at BCR. Docket No. 95 at 1. Plaintiff asserts
that his injuries occurred because the unnamed owners/operators of BCR violated
certain Occupational Safety and Health Administration (“OSHA”) regulations and failed
to provide Personal Protection Equipment. Id. at 2. Given plaintiff’s clarification, the
Court construes plaintiff’s proposed amended complaint as raising a claim against the
unnamed owners/operators of BCR for failure to comply with safety regulations.

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Plaintiff’s proposed second amended complaint alleges that BCR is a “privately
owned business.”2 Docket No. 39-1 at 7. The amended complaint [Docket No. 8]
names “Al (John Doe)” as a defendant and alleges that he was an employee of BCR
who knew of the conditions that plaintiff was working under at the time of plaintiff’s
injury and did nothing to notify him of the hazards. Docket No. 8 at 4. Moreover,
plaintiff alleges that “Al” failed to abide by safety rules and regulations, thus causing
plaintiff’s injury. Id. at 5. As such, a private actor such as BCR “cannot be held liable
solely because it employs a tortfeasor—or, in other words . . . cannot be held liable
under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691 (emphasis in
original). Therefore, in order to hold the owners and operators of BCR liable for the
alleged wrongful acts of “Al,” plaintiff must show that BCR directly caused the
constitutional violation by instituting an official policy that was the “direct cause” or
“moving force” behind the constitutional violations. Pembaur v. City of Cincinnati, 475
U.S. 469, 480-85 (1986); City of Okla. City v. Tuttle, 471 U.S. 808, 820 (1985).
Plaintiff’s proposed amended complaint does not allege that the owners and
operators of BCR had an official policy of not complying with safety regulations. Nor
does the proposed amended complaint allege that “Al” acted in compliance with any
such policy. Given that noncompliance with safety regulations is the basis of plaintiff’s
proposed claim against BCR’s owners and operators, the proposed amended complaint
fails to state a claim against them.

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Plaintiff also states that the “owners of Bent County Recycle (at the time of [the]
incident) where 13 counties with the State of Colorado. . . .” Docket No. 39-1 at 13.
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Moreover, even if noncompliance with mandatory OSHA regulations can be
considered a “policy” and even if such noncompliance was a direct cause of plaintiff’s
injury, plaintiff’s allegations that BCR failed to follow various safety codes fails to state a
claim under the Eighth Amendment. See French v. Owens, 777 F.2d 1250, 1257 (7th
Cir. 1985) (“not every deviation from ideally safe conditions constitutes a violation of the
constitution. The eighth amendment does not constitutionalize the Indiana Fire Code.
Nor does it require complete compliance with the numerous OSHA regulations.”)
(quotation marks and citations omitted); Barnes v. Trotter, 2011 WL 2604344, at *1
(N.D. Ind. June 30, 2011) (in dismissing prisoner’s § 1983 claim under the Eighth
Amendment based on alleged violations of Indiana Health Department code in prison
kitchen, court notes, referring to French v. Owens, that “[j]ust as the Constitution does
not constitutionalize the Indiana Fire Code it also does not constitutionalize the Indiana
Health Department regulations.”). Accordingly, the Court denies plaintiff’s proposed
amendments as futile because they will be subject to dismissal. Jefferson Cnty., 175
F.3d at 859.
Next, plaintiff asserts that Warden Sloan should be added as a defendant in this
case for failing to ensure that safety procedures were adhered to by employees under
his supervision. Docket No. 95 at 4. It is unclear whether plaintiff’s claim against
Warden Sloan stems from plaintiff’s medical treatment or from the injuries plaintiff
sustained while in the recycling container. See Docket No. 39-1 at 10-11. Regardless
of the nature of plaintiff’s claim against Warden Sloan, the Court agrees with the
Recommendation’s conclusion that plaintiff’s allegations are insufficient to raise an
Eighth Amendment claim. Docket No. 87 at 11.
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To sustain a claim against Warden Sloan, plaintiff must allege a deliberate or
intentional act on the part of Warden Sloan to violate his Eighth Amendment rights.
Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). Despite plaintiff’s
citation to the prison handbook, plaintiff has not alleged that Warden Sloan (1)
implemented a policy that (2) led to his injury in the recycling container, and that (3)
Warden Sloan knew of the risk of injury associated with the use of the recycling
container. Dodds v. Richardson, 614 F.3d 1185, 1199-1200 (10th Cir. 2010). As such,
plaintiff’s proposed amended complaint fails to state any allegations to raise a
supervisory claim against Warden Sloan with respect to injuries sustained in the
recycling container.
Plaintiff also cannot sustain an Eighth Amendment claim against Warden Sloan
with respect to his medical treatment because his allegations do not satisfy the
subjective prong of the test, i.e. plaintiff does not allege that Warden Sloan was
personally aware of his requests for medical treatment. See Farmer v. Brennan, 511
U.S. 825, 837 (1994) (under the subjective test “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.”). Accordingly, the Court denies plaintiff’s
proposed claims against Warden Sloan as futile because they would be subject to
dismissal. Jefferson Cnty., 175 F.3d at 859.
With respect to the medical professionals at BCCF, plaintiff argues that the
Recommendation erred when it denied his request to add Nurse Moulds, Nurse Jacobs,
Nurse Newhold, and Medical Provider (“M.P.”) Phillips to the instant action. Docket No.
95 at 6. Plaintiff alleges that these medical professionals violated his Eighth
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Amendment rights because they were deliberately indifferent to his serious medical
needs. Id. at 6-7.
To state a cognizable Eighth Amendment claim for denial of medical care,
plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A
“deliberate indifference” claim involves both an objective and subjective component.
Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). In this case, plaintiff must
show both that he suffered a “sufficiently serious” harm (the objective element) and that
defendant knew and disregarded “an excessive risk” to plaintiff’s health (the subjective
element). See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); Callahan v. Poppell,
471 F.3d 1155, 1159 (10th Cir. 2006).
A sufficiently serious medical need 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.” Sealock, 218 F.3d at
1209. However, a difference of opinion between the prisoner and the prison’s medical
staff does not rise to the level of a constitutional violation. Johnson v. Stephan, 6 F.3d
691, 692 (10th Cir. 1993). The Tenth Circuit noted that “a prison doctor remains free to
exercise his or her independent professional judgment and an inmate is not entitled to
any particular course of treatment.” Callahan, 471 F.3d at 1160 (quoting Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996)). Accordingly, to raise a viable Eighth
Amendment claim, plaintiff must show a “deliberate refusal to provide medical attention,

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as opposed to a particular course of treatment.” Fleming v. Uphoff, 210 F.3d 389, 2000
WL 374295, at *2 (10th Cir. April 12, 2000) (citation omitted).
With respect to Nurse Moulds, plaintiff’s primary allegation is that she “stopped
the pain medication and ordered Tylenol which was much too mild.” Docket No. 39-1 at
8. Plaintiff also claims that she refused to perform further testing after concluding that
his X-ray results showed that his bones were “fine.” Id. Such allegations do not
establish that Nurse Moulds was deliberately indifferent to plaintiff’s medical needs and
show only a disagreement about the proper course of treatment. The Supreme Court
has concluded that “the question whether an X-ray or additional diagnostic techniques
or forms of treatment is indicated is a classic example of a matter for medical judgment.
A medical decision not to order an X-ray, or like measures, does not represent cruel
and unusual punishment.” Estelle, 429 U.S. at 107. Accordingly, plaintiff’s allegations
would be insufficient to sustain an Eighth Amendment claim against Nurse Moulds.
Plaintiff alleges that Nurse Jacobs “echoed defendant Moulds’ statements and
denials” even though he never performed an examination. Docket No. 39-1 at 8.
Plaintiff states that Nurse Jacobs never treated him and was not qualified to diagnose
his condition. Id. Plaintiff also asserts that he was subject to serious disciplinary
sanctions because Nurse Jacobs knowingly provided false testimony during a
disciplinary hearing. Docket No. 95 at 5. The Eighth Amendment only protects
prisoners from constitutionally deficient medical treatment which “constitutes the
‘unnecessary and wanton infliction of pain.’” Estelle, 429 U.S. at 104-05. Because
plaintiff’s allegations against Nurse Jacobs are not related to his medical treatment,
they would not raise a viable Eighth Amendment claim.
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Next, plaintiff alleges that Nurse Newholt and M.P. Phillips were deliberately
indifferent to his serious medical condition when they refused to give him a “lay-in” from
his duties in the kitchen. Docket No. 39-1 at 9. Plaintiff claims that Nurse Newholt
denied the “lay in” request based on M.P. Phillips’ advice even though M.P. Phillips had
not examined plaintiff. Id. Moreover, plaintiff contends that Nurse Newholt did not
explain the extent of his injuries to Mr. Phillips. Id.
Taking plaintiff’s allegations as true, they fail to satisfy the subjective prong of an
Eighth Amendment claim. As noted above, plaintiff must show “a deliberate refusal to
provide medical attention, as opposed to a particular course of treatment.” Fleming,
2000 WL 374295, at *2. Plaintiff’s averments present only a disagreement with Nurse
Newholt and M.P. Phillips’ medical judgment. To the extent plaintiff states that Nurse
Newholt’s and M.P. Phillips’ actions amount to malpractice, Docket No. 39-1 at 9, the
Court notes that neither “medical malpractice . . . nor . . . [a] disagreement in medical
judgment” constitute an Eighth Amendment claim. Green v. Branson, 108 F.3d 1296,
1303 (10th Cir. 1997). Consequently, plaintiff’s proposed claims against Nurse Newholt
and M.P. Phillips would be insufficient to raise an Eighth Amendment claim.
In sum, the Court agrees with all aspects of the Recommendation. Plaintiff’s
proposed amendments are futile because, even if accepted, they would be subject to
dismissal. Jefferson Cnty., 175 F.3d at 859.
Therefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 87] is ACCEPTED. It is further

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ORDERED that plaintiff’s Motion to Amend and Re-instate [Docket No. 39] is
DENIED. It is further
ORDERED that the Motion for Status on Plaintiff’s Motion to Amend and
Reinstate Defendants (Doc. #39) [Docket No. 132] is DENIED as moot.

DATED September 14, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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