Tivis v. Stock et al

Filing 220

ORDER. 189 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE is accepted. 155 Partial MOTION to Dismiss is granted. Plaintiff's second, fifth, and sixth claims for relief are dismissed with prejudice, by Judge Philip A. Brimmer on 12/29/2014. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02050-PAB-KMT
MICHAEL TIVIS,
Plaintiff,
v.
BEVERLY DOWIS, in her individual and official capacity as Health Service
Administrator for SCF,
NICOLE WILSON, in her individual capacity,
DR. PAULA FRANTZ, in her individual and official capacity as Chief Medical Officer for
the Colorado Department of Corrections,
MEGHAN REED, in her individual capacity and official capacity as ADA Inmate
Coordinator for the State of Colorado,
PHYSICIAN HEALTH PARTNERS, INC., d/b/a Correctional Health Partners, a
Colorado corporation, and
DR. STEVEN KREBS, in his individual capacity.
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) filed on August 11, 2014
[Docket No. 189]. The magistrate judge recommends that the Court grant the partial
motion to dismiss filed by defendants Beverly Dowis, Nicole Wilson, and Meghan Reed.
[Docket No. 155]. On September 8, 2014, having extended plaintiff’s deadline to object
to the Recommendation and having received no objection by the extended due date,
the Court issued an order accepting the Recommendation. Docket No. 195. Later that
day plaintiff filed a Motion for Reconsideration of the Court’s order accepting the
Recommendation, and submitting proposed objections. Docket No. 196. The Court

granted plaintiff’s motion in part on October 14, 2014, and vacated its September 8,
2014 Order. Docket No. 217.
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). In the absence of a
proper objection, the Court may review a magistrate judge’s recommendation under any
standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that
Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). An objection is proper if it is specific enough to enable the Court “to focus
attention on those issues–factual and legal–that are at the heart of the parties’ dispute.
United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996).
I. ANALYSIS
Plaintiff is an inmate at the Sterling Correctional Facility (“SCF”). Docket No. 138
at 2, ¶ 1. The relevant facts are set forth in detail in the Recommendation and will not
be recited here except as relevant to the Court’s de novo review.
A. ADA and Rehabilitation Act Claims
Plaintiff objects to the Recommendation’s finding that he fails to state a claim
under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act on two
grounds: first, that the Recommendation’s finding that plaintiff’s need for an
accommodation was not obvious and that plaintiff did not make an explicit request for
an accommodation were erroneous, and second, that the Recom mendation’s finding

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was “based on an incomplete recitation of facts set forth in the Second Amended
Complaint.” Docket No. 196-2 at 2. 1
Title III of the ADA states that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. To state a claim for discrimination under the
ADA, 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.” Anderson v. Colo. Dep’t of Corrs., 848 F. Supp. 2d 1291,
1300 (D. Colo. 2012) (quoting Robertson v. Las Animas County Sheriff’s Dep’t, 500
F.3d 1185, 1193 (10th Cir. 2007)). A claim under the Rehabilitation Act must meet
similar requirements, namely, “(1) that the plaintiff is disabled under the Act; (2) that he
would be ‘otherwise qualified’ to participate in the program; (3) that the program
receives federal financial assistance (or is a federal agency); and (4) that the program
has discriminated against the plaintiff.” McGeshick v. Principi, 357 F.3d 1146, 1150
(10th Cir. 2004).
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Plaintiff also objects that “[t]he Recommendation’s selective fact finding resulted
in omission of critical facts necessary to resolve defendants [sic] motion.” Docket No.
196-2 at 2. This objection is not directed to any specific finding, but rather appears to
be a general objection to the entirety of the Recommendation. Objections must be
specific enough “to focus attention on those issues-factual and legal-that are at the
heart of the parties’ dispute.” 2121 East 30th Street, 73 F.3d at 1059. Plaintiff’s
objection falls short of this standard and is thus not properly before the Court.
Nevertheless, the Court does not confine its de novo review to the facts considered in
the Recommendation and will consider all factual allegations raised in plaintiff’s
objections.
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There is no dispute that plaintiff is a qualified individual with a disability, that he is
“otherwise qualified” to receive medications from SCF and that SCF receives federal
funding. Plaintiff challenges only the finding that defendant Reed did not refuse to
make a reasonable accommodation. Docket No. 196-2 at 8-9. “Once a public entity
has knowledge of an individual’s disability, the entity must also have knowledge that an
individual requires an accommodation of some kind to participate in or receive the
benefits of its services. In other words, the entity must have knowledge that an
individual’s disability limits her ability to participate in or receive the benefits of its
services.” Robertson, 500 F.3d at 1197 (citing Taylor v. Principal Fin. Grp., Inc., 93
F.3d 155, 164 (5th Cir. 1996)). “[A] public entity is on notice that an individual needs an
accommodation when it knows that an individual requires one, either because that need
is obvious or because the individual requests an accommodation.” Id. at 1197-98.
Plaintiff points to one specific fact allegedly overlooked by the Recommendation,
that defendant Reed denied plaintiff’s grievance “[f]ollowing a thorough investigation
into [plaintiff’s] allegations.” Docket No. 196-2 at 9 (citing Docket No. 155-2 at 1).
According to plaintiff, a thorough investigation into plaintiff’s allegations must have
included plaintiff’s “prior grievances, his medical history, and an inquiry into the inner
workings of the medicine-distribution system at SCF,” and therefore would have made
defendant Reed aware of plaintiff’s need for an accommodation. Id. The Court
disagrees. Plaintiff’s grievance, which is attached to defendants’ motion,2 pertained

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The magistrate judge considered the grievance and written denial on a Rule
12(b)(6) motion because the grievance was referred to in the complaint. Docket No.
189 at 3 n.3. Plaintiff does not object to this aspect of the Recommendation.
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entirely to plaintiff’s need for medication. The relief requested in the grievance included
“adequate pain relief,” an order that the individual who informed plaintiff that he would
no longer be given pain medication because he missed doses could not have contact
with plaintiff, a copy of an order that the Department of Corrections no longer uses a
particular pain medication, and a “return” of all of plaintiff’s restrictions. Docket No.
155-1 at 1. These requests did not put defendant Reed on notice that plaintiff would
require an accommodation. Moreover, plaintiff’s chief allegation in his grievance was
that a certain individual was retaliating against him for refusing to stand in line for
medication. The allegations of the complaint do not allow a reasonable inference that
plaintiff’s grievance seeking medical care would have made it obvious that plaintiff
would require a future accommodation.
Plaintiff’s objection refers to a “request to enter a shorter med-line” that preceded
his grievance to defendant Reed. Docket No. 196-2 at 10. But the com plaint is devoid
of details about that earlier request other than the allegation that it was “arbitrarily and
cruelly denied.” See Docket No. 138 at 16, ¶ 91. Plaintiff alleges no facts that suggest
defendants Reed, Dowis, or Frantz were involved in or aware of the denial of his earlier
request to enter a shorter “med-line.” The Court cannot determine from the complaint
to whom the request was made or whether it was made formally in writing. Absent such
allegations, inferring defendants’ awareness of plaintiff’s need to stand in a shorter line
for medication from the mere fact that a thorough investigation was conducted into
plaintiff’s grievance requesting adequate pain relief would go beyond the “reasonable
inferences” to which plaintiff is entitled on a Rule 12(b)(6) motion. See Gaines v.
Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). Accordingly, the Court finds no error
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in this aspect of the Recommendation.
B. Eighth Amendment Claim
Plaintiff objects to the Recommendation’s finding that plaintiff failed to state a
claim under 42 U.S.C. § 1983 against defendant Wilson for violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment. Plaintiff argues that
Magistrate Judge Tafoya “employed a heightened pleading standard” and “failed to
appreciate the scope of a ‘gatekeeper’s’ liability for deliberate indifference to serious
medical needs under Tenth Circuit [§] 1983 jurisprudence.” Docket No. 196-2 at 2.
The Eighth Amendment’s ban on cruel and unusual punishment is violated if a
defendant’s “deliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain.” Self v. Crum, 439 F.3d 1227, 1230
(10th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A claim for
deliberate indifference has both an objective and a subjective component. To satisfy
the objective component, a prisoner must demonstrate that his medical need is
“objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
medical need is sufficiently serious if “it is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (citation omitted). To satisfy the subjective component, a prisoner must
demonstrate that the defendant acted with a “sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834. “‘[D]eliberate indifference’ is a stringent standard of fault.”
Bd. of Cnty. Comm’r v. Brown, 520 U.S. 397, 410 (1997). “[T]he subjective component

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is not satisfied, absent an extraordinary degree of neglect.” Self, 439 F.3d at 1232.
Instead, the defendant must “know[] of and disregard[] an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. That is, “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.
The Tenth Circuit has recognized three types of conduct which may constitute
deliberate indifference in a prison medical case: (1) a medical professional failing to
treat a serious medical condition; (2) a prison official preventing an inmate from
receiving medical treatment; or (3) a prison official denying a prisoner access to medical
personnel capable of evaluating the inmate’s condition. Sealock v. Colorado, 218 F.3d
1205, 1211 (10th Cir. 2000). Plaintiff’s complaint against defendant Wilson invokes the
second type of conduct, liability of a “gatekeeper.”
The Court finds that plaintiff’s allegations do not state sufficient facts to show
that defendant Wilson was deliberately indifferent to plaintiff’s serious medical
condition. Although plaintiff meets the objective component of a deliberate indifference
claim, as his doctor’s recommendation establishes an objectively serious medical need,
plaintiff pleads no facts that satisfy the subjective component. Plaintiff concedes that
his claim against defendant Wilson is not based on denial of grievances, Docket No.
196-2 at 5-6, but that his mention of the numerous grievances defendant Wilson denied
was simply to support that defendant Wilson “had personal knowledge of Mr. Tivis’
extremely painful hip infection and knew that a delay in the provision of treatment would
cause him substantial risk of harm.” Id. at 6. Plaintiff’s allegations do not support this
finding. Plaintiff alleges only that due to defendant Wilson’s history of denying plaintiff’s
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grievances, defendant Wilson was aware that plaintiff “suffered from intolerable pain in
his left hip beginning in June of 2009.” Docket No. 138 at 15, ¶ 83. W hile plaintiff
pleads that he submitted grievances complaining of hip pain that he had suffered for
years, he does not allege that he filed a grievance that explained Dr. Jurgens’ January
2012 recommendation that plaintiff needed surgery or that defendant Wilson was
otherwise aware of this recommendation.
Moreover, the only specific act or omission of defendant Wilson that plaintiff
claims caused him harm was that Wilson “ignored Dr. Fauvel’s request, in April of 2012,
to check on the approval and scheduling of Mr. Tivis urgent hip osteotomy.” Id. at 15,
¶ 85. The complaint contains no details about Dr. Fauvel’s request or about Dr. Fauvel
himself. In fact, plaintiff’s two characterizations of Dr. Fauvel’s request are
contradictory: plaintiff first describes it as a request “to check on the approval and
scheduling” of a hip osteotomy. Id. Later, however, plaintiff claims that Dr. Fauvel
made a “direct request to initiate an urgent appointment.” Id. at 22, ¶ 125. However the
request is characterized, neither the allegations in the complaint nor any reasonable
inferences that may be drawn from them support a finding that defendant Wilson’s onetime failure to check on the scheduling, or schedule an appointment, constitutes the
“extraordinary degree of neglect” that plaintiff must show to satisfy the subjective
component of a deliberate indifference claim, Self, 439 F.3d at 1232, 3 particularly since
the appointment that defendant Wilson allegedly failed to schedule took place on June
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Plaintiff argues in his objection that the complaint referred to two instances
where defendant Wilson was instructed to schedule or check on the status of plaintiff’s
surgery approval. Docket No. 196-2 at 7 (citing Docket No. 138 at 22, ¶ 124). Plaintiff
pleads no facts related to a second request, however.
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25, 2012, a short time after defendant Wilson’s alleged failure. Docket No 138 at 9,
¶ 38. The Court therefore finds no error in the Recommendation’s conclusion that
plaintiff fails to state a claim under the Eighth Amendment.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 189] is ACCEPTED. It is further
ORDERED that defendants Beverly Dowis, Nicole Wilson, and Meghan Reed’s
Partial Motion to Dismiss [Docket No. 155] is GRANTED. It is further
ORDERED that plaintiff’s second, fifth, and sixth claims for relief are dismissed
with prejudice.

DATED December 29, 2014.
BY THE COURT:

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

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