Griffin v. Hickenlooper et al

Filing 23

ORDER to Dismiss in Part and to Draw Case to a District Judge and to a Magistrate Judge. FURTHER ORDERED that Defendants John Hickenlooper, DOC Executive Director Tom Clements, Parole Officer Roberts, Raidah Shepard, and the Defendant identified as Jane and John Doe are dismissed as parties to this action. FURTHER ORDERED that this case shall be drawn to a district judge and to a magistrate judge, by Judge Lewis T. Babcock on 9/10/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01379-BNB
ELDRIDGE L. GRIFFIN,
Plaintiff,
v.
JOHN HICKENLOOPER, et al., Governor State of Colorado,
TOM CLEMENTS, et al., Executive Director of Department of Corrections,
PAROLE OFFICER ROBERTS, Division Adult Parole, and in personal and official
capacity,
RAIDAH SHEPARD, MD Denver Reception Diagnostic Center, and in personal and
official capacity,
AMY COSNER, Legal Services, Department of Correction, and in personal and official
capacity,
BERNADETTE SCOTT, ADA Facility Coordinator, SCF, and in personal and official
capacity, and
JANE AND JOHN DOE, Unknown Individuals, Nurse DRDC,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Eldridge L. Griffin, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Sterling Correctional Facility in Sterling,
Colorado. Mr. Griffin initiated this action by filing pro se a Prisoner Complaint (ECF No.
1). On May 31, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Griffin to file an
amended complaint that complies with the pleading requirements of the Federal Rules
of Civil Procedure. On July 12, 2012, Mr. Griffin filed an amended Prisoner Complaint
(ECF No. 14). He seeks damages as relief.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended

Prisoner Complaint because Mr. Griffin is a prisoner and he is seeking redress from
officers or employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is
required to dismiss the amended Prisoner Complaint, or any portion of the amended
Prisoner Complaint, that is frivolous. A legally frivolous claim is one in which the plaintiff
asserts the violation of a legal interest that clearly does not exist or asserts facts that do
not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For
the reasons stated below, the Court will dismiss the amended Prisoner Complaint in
part as legally frivolous.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Griffin is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the amended Prisoner
Complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [the Court] 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, 935 F.2d at 1110.
However, the Court should not be an advocate for a pro se litigant. See id.
Mr. Griffin asserts three claims for relief in the amended Prisoner Complaint. He
first claims that he was imprisoned illegally at the El Paso County Jail pursuant to a
parole hold for more than fourteen months following his arrest on September 9, 2010.
According to Mr. Eldridge, he should have received a parole revocation hearing within
thirty days of his arrest as required under state law. Mr. Griffin asserts that the parole
hold was placed by Parole Officer Roberts. He also seeks to hold Colorado Governor
John Hickenlooper and DOC Executive Director Tom Clements liable for the alleged
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constitutional violation stemming from what Mr. Griffin contends was an illegal parole
hold.
Mr. Griffin’s second claim in the amended Prisoner Complaint relates to medical
treatment he received in 2008 while he was incarcerated at the Denver Reception and
Diagnostic Center. Mr. Griffin alleges in support of the medical treatment claim that he
was denied high blood pressure medication on April 29, 2008, by an unknown nurse
and that his life was endangered and he was forced to declare a medical emergency
several days later when he was suffering from a severe migraine headache caused by
the denial of his high blood pressure medication. Mr. Griffin further alleges in support of
his medical treatment claim that Dr. Shepard committed malpractice by prescribing an
overdose of medication in response to Mr. Griffin’s medical emergency that nearly
resulted in his death. In addition to asserting his medical treatment claim against Dr.
Shepard and the unknown nurse, Mr. Griffin also asserts the medical treatment claim
against Governor Hickenlooper and DOC Executive Director Clements.
Mr. Griffin’s third claim in the amended Prisoner Complaint relates to alleged
discrimination by prison officials because of a vision disability. Mr. Griffin specifically
claims that the alleged disability-based discrimination violates his rights under Title II of
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and § 504 of the
Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794. He apparently also
asserts claims pursuant to 42 U.S.C. § 1983 in which he contends that his constitutional
rights have been violated as a result of the disability-based discrimination. Mr. Griffin
asserts the disability-based discrimination claim against Governor Hickenlooper, DOC
Executive Director Clements, Amy Cosner, and Bernadette Scott, although he
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specifically alleges only that he was denied accommodations for his vision disability by
Defendants Cosner and Scott.
Before addressing the merits of his specific claims, the Court will address the
personal participation of Governor Hickenlooper and DOC Executive Director Clements,
both of whom are sued only in their individual capacities. Because it is apparent that
Mr. Griffin has named Governor Hickenlooper and DOC Executive Director Clements as
Defendants based solely on their supervisory roles in the State of Colorado and the
DOC, they will be dismissed as parties to this action for lack of personal participation.
Magistrate Judge Boland advised Mr. Griffin that personal participation is an
essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir. 1976). To establish personal participation, Mr. Griffin must show that each
Defendant caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). There must be an affirmative link between the alleged constitutional
violation and each Defendant’s participation, control or direction, or failure to supervise.
See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Thus, a supervisory
official may not be held liable for the unconstitutional conduct of his or her subordinates
on a theory of respondeat superior. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 129 S.

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Ct. at 1949). Therefore, in order to succeed in a § 1983 suit against a government
official for conduct that arises out of his or her supervisory responsibilities, a plaintiff
must allege and demonstrate that: “(1) the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199.
With respect to both Governor Hickenlooper and DOC Executive Director
Clements, Mr. Griffin fails to allege the existence of any official state or DOC policy that
caused the constitutional injuries he allegedly suffered or that either of these
Defendants acted with the state of mind necessary to establish a constitutional violation.
Therefore, the claims asserted against Governor Hickenlooper and DOC Executive
Director Clements are legally frivolous and they will be dismissed as parties to this
action.
Mr. Griffin’s claim regarding his allegedly illegal imprisonment pursuant to a
parole hold following his arrest on September 9, 2010, the first claim in the amended
Prisoner Complaint, also will be dismissed because that claim is barred by the rule in
Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for damages
necessarily would imply the invalidity of a criminal conviction or sentence, the action
does not arise until the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by an authorized state tribunal, or called
into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.
Although Mr. Griffin is not challenging the validity of his conviction or sentence, the rule
in Heck also applies to his claim challenging the allegedly illegal parole hold. See Crow
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v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam) (stating that Heck applies to
proceedings related to parole and probation). In short, a civil rights action filed by a
state prisoner “is barred (absent prior invalidation) – no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct
leading to conviction or internal prison proceedings) – if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005).
It is indisputable that Mr. Griffin’s claim challenging the allegedly illegal parole
hold implicates the validity of his confinement pursuant to that parole hold.
Furthermore, Mr. Griffin does not allege, and there is no indication in the amended
Prisoner Complaint, that he has invalidated the allegedly illegal confinement he is
challenging. Although it is not clear whether Mr. Griffin still may challenge the allegedly
illegal confinement, there is no indication that he was unable to challenge the allegedly
illegal parole hold during the fourteen-month period he alleges he was subjected to the
allegedly illegal parole hold. See Cohen v. Longshore, 631 F.3d 1311, 1316-17 (10th
Cir. 2010) (holding that the rule in Heck does not apply to a petitioner who is unable to
obtain habeas relief as long as the inability to obtain habeas relief does not stem from a
lack of diligence). Therefore, the Court finds that Mr. Griffin’s claim for damages
challenging the allegedly illegal parole hold is barred by the rule in Heck and must be
dismissed. The dismissal will be without prejudice. See Fottler v. United States, 73
F.3d 1064, 1065 (10th Cir. 1996). Because the illegal parole hold claim is the only claim
asserted against Parole Officer Roberts, he will be dismissed as a party to this action.
The Court next will address Mr. Griffin’s medical treatment claim, the second
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claim in the amended Prisoner Complaint. Mr. Griffin specifically claims that the denial
of medical treatment in 2008 violates his rights under the Eighth Amendment. To
establish liability under the Eighth Amendment, Mr. Griffin must show, in part, that the
Defendants acted with deliberate indifference to his health or safety. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference means that “a prison official
may be held liable . . . only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at
847.
Mr. Griffin’s medical treatment claim will be dismissed because the facts Mr.
Griffin alleges in support of that claims do not demonstrate that either the unknown
nurse or Dr. Shepard acted with deliberate indifference. With respect to the unknown
nurse, Mr. Griffin alleges only that she advised Mr. Griffin he could not get any
medication until he was seen by the facility doctor. With respect to the overdose of
medication allegedly prescribed by Dr. Shepard, Mr. Griffin alleges only that Dr.
Shepard was negligent. Mr. Griffin does not allege that either the unknown nurse or Dr.
Shepard knew he faced a substantial risk of serious harm and disregarded that risk by
failing to take reasonable measures to abate it.
At best, Mr. Griffin’s allegations in support of his medical treatment claim indicate
the unknown nurse and Dr. Shepard may have been negligent. However, Mr. Griffin
cannot state a cognizable Eighth Amendment claim based on a negligence theory. See
Whitley v. Albers, 475 U.S. 312, 319 (1986) (stating that cruel and unusual punishment
involves more than ordinary lack of due care for a prisoner’s interests and safety).
Medical malpractice is not a constitutional violation merely because the alleged victim is
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a prisoner. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Even if Defendants were
grossly negligent, the Eighth Amendment claim against him still must be dismissed
because deliberate indifference requires a higher degree of fault than gross negligence.
See Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir. 1990).
The Court also notes that Mr. Griffin’s medical treatment claim is barred by the
two-year statute of limitations that applies to § 1983 actions in Colorado. See Blake v.
Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993). Although the statute of limitations is
an affirmative defense, see Fed. R. Civ. P. 8(c)(1), the Court may dismiss a claim sua
sponte on the basis of an affirmative defense if the defense is “obvious from the face of
the complaint” and “[n]o further factual record [is] required to be developed in order for
the court to assess the [plaintiff’s] chances of success.” Yellen v. Cooper, 828 F.2d
1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10th Cir.
1995) (stating that dismissal under § 1915 on the basis of an affirmative defense is
permitted “when the claim’s factual backdrop clearly beckons the defense”).
It is obvious on the face of the Prisoner Complaint that Mr. Griffin’s Eighth
Amendment claim accrued in 2008 when he contends he was denied adequate medical
treatment. However, Mr. Griffin did not file the instant action until May 2012. As a
result, it is clear that the medical treatment claim is barred by the statute of limitations.
Because the medical treatment claim is the only claim asserted against the unknown
nurse and Dr. Shepard, they will be dismissed as parties to this action.
The Court will not address at this time the merits of Mr. Griffin’s third claim for
relief in the amended Prisoner Complaint, the disability-based discrimination claim, that
is asserted against Defendants Cosner and Scott in their individual and official
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capacities. Instead, the action will be drawn to a district judge and to a magistrate judge
as provided in D.C.COLO.LCivR 8.2D because the Court has completed its review
pursuant to D.C.COLO.LCivR 8.2C. Accordingly, it is
ORDERED that the claims asserted against Defendants John Hickenlooper and
DOC Executive Director Tom Clements are dismissed as legally frivolous pursuant to 28
U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that Mr. Griffin’s illegal parole hold claim (claim one in the
amended Prisoner Complaint) is dismissed without prejudice as barred by the rule in
Heck v. Humphrey, 512 U.S. 477 (1994). It is
FURTHER ORDERED that Mr. Griffin’s medical treatment claim (claim two in the
amended Prisoner Complaint) is dismissed as legally frivolous pursuant to 28 U.S.C. §
1915A(b)(1). It is
FURTHER ORDERED that Defendants John Hickenlooper, DOC Executive
Director Tom Clements, Parole Officer Roberts, Raidah Shepard, and the Defendant
identified as Jane and John Doe are dismissed as parties to this action. It is

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FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this

10th

day of

September

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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