Cary v. Hickenlooper et al

Filing 81

ORDER adopting Report and Recommendations re 63 and 64 . Plaintiff's objections are overruled. By Judge Raymond P. Moore on 10/16/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02072-RM-KJM
ARNOLD A. CARY,
v.

Plaintiff,

DAVID TESSIER, CTCF, Health Services Administrator,
SUSAN M. TIONA, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
JOHN V. BUGLEWICZ, M.D., CTCF, Health Services Physician and Fremont County
Commissioner,
LINDSEY FISH DEPENA, M.D., CTCF, former Health Services Physician
RODNEY ACHEN, CTCF, Food Services Captain,
RONALD WILLIAMS, CTCF, Lieutenant,
CHRISTINA TURNER, CTCF, Sergeant, and
ROBERT BURNS, CTCF, Correctional Officer,
Defendants.
ORDER ADOPTING MAGISTRATE’S RECOMMENDATIONS AND OVERRULING
PLAINTIFF’S OBJECTIONS
This matter is before the Court on United States Magistrate Judge Kristen L. Mix’s
Recommendations (“the Recommendations”) (ECF Nos. 63 and 64) that this Court dismiss
Plaintiff Arnold A. Cary’s (“Plaintiff”) claims against Defendants David Tessier, Susan M.
Tiona, M.D., John Buglewicz, M.D., Rodney Achen, Ronald Willams, Christina Turner, and
Robert Burns (ECF No. 64), and dismiss Lindsey Fish DePena from the suit without prejudice
for Plaintiff’s failure to properly execute service of process on her pursuant to Federal Rule of

Civil Procedure 4(c). (ECF No. 63). For the reasons below, Plaintiff’s Objections to both
Recommendations are OVERRULED, and the Recommendations are ADOPTED.1
I.

LEGAL STANDARDS
A.

Review of the Magistrate Judge’s Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule
of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of
the magistrate judge’s [recommendation] that has been properly objected to.” In conducting its
review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of
Civil Procedure and specific enough to let the “district judge…focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” United States v. 2121 E. 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
B.

Standards for Dismissal

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may
move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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In both objections (ECF No. 73 & ECF No. 80), Plaintiff has submitted what he characterizes as a motion for
reconsideration. However, given the nature of his document and the type of review he seeks, the Court chooses
interpret this motion as a plea for de novo review and considers his objections accordingly.

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129 S. Ct. at 1949. Courts treat a motion to dismiss based on Eleventh Amendment immunity as
a motion to dismiss a complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1). Meyers v. Colo. Dep’t of Human Servs., 62 F. App’x 831, 832 (10th Cir. 2003). A
Rule 12(b)(1) dismissal is not a judgment on the merits, but a determination that the Court lacks
authority to adjudicate the matter. See Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994).
C.

Pro Se Status

Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings.
Haines v. Kerner, 404 U.S. 519, 520–21 (1972). The Court, however, cannot act as advocate for
Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
II.

FACTS AND PROCEDURAL HISTORY
The Court adopts and incorporates the factual and procedural history included within the

Recommendations. To the extent any additional facts are necessary for the Court to resolve this
matter, those facts are below.
Plaintiff is a pro se prisoner incarcerated at the Sterling Correctional Facility. (ECF No.
1). During the period relevant to this lawsuit, he was resident at the Colorado Territorial
Correctional Facility (“CTCF”). (ECF No. 1 at 2; ECF No. 21 at 8). Individual Defendants are
Colorado Department of Corrections (“CDOC”) employees at CTCF. (ECF No. 1 at 2–3).
Plaintiff filed this 42 U.S.C. § 1983 action on August 6, 2012, and filed a second
amended complaint on January 23, 2013. (ECF No. 1; ECF No. 21). This amended complaint
alleged multiple violations of the Eighth Amendment’s cruel and unusual punishment clause
based on his conditions of confinement, the alleged negative effects on his health, and
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Defendants’ responses to his medical needs. (ECF No. 21 at 10–23). On March 21, 2013, U.S.
District Court Senior Judge Lewis Babcock dismissed eleven defendants including Colorado
Governor John Hickenlooper and Tom Clements (Executive Director, CDOC) as Plaintiff failed
to allege facts supporting an arguable claim against them for deprivation of his Eighth
Amendment rights. (ECF No. 22). Governor Hickenlooper and Mr. Clements were the only
Defendants capable of redressing the system-wide issues in the Colorado prison system that
Plaintiff alleges. All remaining Defendants are CTCF employees. (ECF No. 21 at 1–2).
On May 31, 2013, Defendants submitted a Partial Motion to Dismiss Plaintiff’s Second
Amended Complaint. (ECF No. 38). They argued that the Eleventh Amendment bars suits
against Defendants in their official capacities, that Defendants are entitled to qualified immunity
regarding allegedly inadequate medical treatment and a supposed conspiracy to harass him, and
that Plaintiffs declaratory and injunctive relief claims are moot since he is no longer housed at
CTCF. (ECF No. 38). On February 2, 2014, Judge Mix recommended that the Court grant
Defendants’ Motion as to those defenses. (ECF No. 64). The Recommendation left unaffected,
insofar as the above recommended dismissals are concerned, Plaintiff’s compensatory damages
claim against Mr. Achen for allegedly improper food sanitation at CTCF. The motion also
sought additional relief on Prison Litigation Reform Act grounds which would have covered the
food sanitation claim. However, Judge Mix denied the motion to the extent it sought relief on
this latter ground.
In a separate document filed February 3, 2014, Judge Mix recommended sua sponte that
Lindsey Fish DePena be dismissed from this lawsuit because she has not been properly served

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with process. (ECF No. 63). Plaintiff objected to the Recommendations in both documents
(ECF Nos. 73, 80), and the Court now considers his objections together.
III.

ANALYSIS
This Court has reviewed the Recommendations, Plaintiff’s objections and all relevant

pleadings, and concludes that Magistrate Judge Mix’s analysis of the issues on which objections
were filed was thorough and her conclusions were correct. The Court will now consider
Plaintiff’s objections to the Recommendations.
A.

Plaintiff’s objection to the Recommendation that Defendants are entitled to
Eleventh Amendment Immunity for actions taken their official capacities

The Recommendation advised that Defendants are entitled to Eleventh Amendment
immunity since, as prison officials, suits against them in their official capacities are treated as
suits against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). The Recommendation also
counseled that specific written objections were due within fourteen days after being served with a
copy of the Recommendation. Plaintiff objected, late, but this Court discerns no comprehensible,
specific objection to the Recommendation that Defendants are entitled to Eleventh Amendment
immunity in their official capacities. (See ECF 73 at 4–5).
What Plaintiff appears to be arguing is that the literal text of the Eleventh Amendment
only prohibits suits against a state by citizens of another or a foreign state. Id. at 4. To the extent
that this is Plaintiff’s objection, he fails to recognize that the Supreme Court has interpreted the
Eleventh Amendment to bar suit by a citizen against his own state, despite the Amendment’s
apparently clear language. Hans v. State of Louisiana, 134 U.S. 1, 10–13 (1890).
The Court concludes that the Magistrate Judge’s analysis was thorough and sound, and
that there is no clear error of law or abuse of discretion. See Fed. R. Civ. P. 72(b) advisory
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committee’s note (“When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”); see also
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the
district court may review a magistrate’s report under any standard it deems appropriate.”).
Moreover, even accepting Plaintiff’s untimely objection, it is incorrect as a matter of law.
Therefore, the Court adopts the Recommendation.
B.

Plaintiff’s Objection to the Recommendation that his claims for declaratory
and injunctive relief are moot

The Magistrate Judge determined that Plaintiff’s claims for declaratory and injunctive
relief are moot because he is no longer housed at CTCF. (ECF No. 64 at 16–17). Plaintiff
objects, late, arguing that just because he has been transferred, “state wide policies,” as he calls
them, that violate his constitutional rights in one facility, “may still violate his rights in the new
facility.” (ECF No. 73 at 5). He therefore argues that his claims are not moot, but the
Recommendation is correct.
To be sure, when a prisoner brings a lawsuit challenging statewide policy applied in a
generally uniform fashion throughout a prison system, courts have been disinclined to conclude
that the prisoner’s declaratory or injunctive claims are moot, even after he has been transferred to
another prison in that system. Jordan v. Sosa, 654 F.3d 1012, 1028 (2011) (citing Abdulsaheeb
v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010)). However, here, no “state wide” policy
exists. Furthermore, when transferred prisoners sue for declaratory and injunctive relief
concerning allegedly system-wide prison issues, it is critical that the prisoner has sued
defendants actually situated to effectuate any prospective relief. Id. at 1028–29. For example,

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Plaintiff might sue the Bureau of Prisons Director in his official capacity or the Bureau of
Prisons itself. Id. at 1029.
Plaintiff is not currently suing any party situated to bring about prospective relief. All
remaining parties work at CTCF—Plaintiff’s former prison—and Governor Hickenlooper and
Mr. Clements have already been dismissed. (ECF No. 22). See Jordan, 654 F.3d at 1028 (a
transferred prisoner’s challenge to system-wide prison policies is moot where he seeks equitable
relief and only sues prison officials at the transferor institution—that is, the institution where he
was formerly incarcerated). Thus, Plaintiff’s objections to the Recommendation are overruled
and his claims for declaratory and injunctive relief are moot.
C.

Plaintiff’s Objection to the Recommendation that Defendants are entitled to
Qualified Immunity

Judge Mix recommended granting Defendants qualified immunity with respect to
allegations that they provided Plaintiff inadequate medical treatment and conspired to harass
him. (ECF No. 64 at 17–26). Plaintiff objects late to the Recommendation, setting forth only the
most basic understanding of qualified immunity. Plaintiff’s argument hinges on the idea that
“state officials can be sued in their individual capacities,” yet he does not coherently elaborate
further. (ECF No. 73 at 7). Glaringly, he neglects to recognize that qualified immunity shields
government officials performing discretionary functions from liability for damages “insofar as
their conduct does not violate clearly established constitutional rights of which a reasonable
person would have known.” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Recommendation correctly determined that “Plaintiff’s factual allegations fail to
demonstrate that Defendants violated a constitutional right,” which entitles Defendants to
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qualified immunity. (ECF No. 64 at 18). See Saucier v. Katz, 533 U.S. 194, 200–01 (2001). In
terms of an Eighth Amendment claim predicated on medical care deficiency or denial, the
Recommendation grounded its conclusion on three bases—none of which drew objection from
Plaintiff. First, the Recommendation concluded that the bulk of Plaintiff’s medical treatment
claims amount to a difference of opinion as to the proper course of treatment. Such allegations
do not rise to the level of an Eighth Amendment violation. Pearson v. Simmons, No. 95-3006,
1998 WL 154552, at *2 (D. Kan. Mar 17, 1998). Second, as to the short term delay or
deprivation of oxygen, the Recommendation found no allegation of substantial harm as required
for an Eighth Amendment violation. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Third, as
to the medical claim against Defendant Tessier, a layman, there were no allegations that this
defendant was aware of the medical need for an MRI and, thus, no showing of awareness of
substantial risk of harm or reckless indifference to such risk. See Farmer v. Brennan, 511 U.S.
825, 838–39 (1994). Each of these deficiencies precludes the finding of an Eighth Amendment
violation. And in the absence of a constitutional violation, Defendants are entitled to qualified
immunity.
Plaintiff also objects that Judge Mix “chang[ed] his retaliation claim against Defendants
Williams, Turner, and Berns to a conspiracy to harass.” (ECF No. 73 at 8). Judge Mix has not
mischaracterized his claim. In his complaint, Plaintiff asserts that Defendants Williams, Turner,
and Burns “conspir[ed] to harass” him through intimidation. (ECF No. 21 at 19). In any event, a
retaliation claim still fails. Inmates claiming retaliation “must prove that ‘but for’ the retaliatory
motive,” retaliatory conduct directed at him or her would not have occurred. Peterson v. Shanks,
149 F.3d 1140, 1144 (1998). Plaintiff must “allege specific facts showing retaliation because of
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the exercise of the plaintiff’s constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1
(10th Cir. 1990). Here, Plaintiff does not allege specific facts illustrating but for causation
between his conduct and the alleged harms. Moreover, to the extent that Plaintiff’s contention is
that he was retaliated against in connection with the Eighth Amendment violations against him,
his claim must fail as he failed to allege matters constituting an Eighth Amendment violation.
Accordingly, his objections to the Recommendation fail, and Defendants are entitled to qualified
immunity.
D.

Plaintiff’s objection to the Recommendation that Dr. Lindsey Fish DePena be
dismissed from the present lawsuit

Judge Mix, sua sponte, recommended dismissing Defendant Lindsey Fish DePena, as she
is not currently a proper party to this suit pursuant to Federal Rule of Civil Procedure 4(c). (ECF
No. 63). Despite Plaintiff’s late objection, Judge Mix correctly recommended the Defendant’s
dismissal.
Plaintiff’s case against the Defendant has been pending since August 6, 2012. Under
Federal Rule of Civil Procedure 4(m), Plaintiff had 120 days to serve Defendant DePena, but he
failed to provide the Marshal sufficient information to serve her within the 120 day timeframe.
Fed. R. Civ. P. 4(m). Determining that Plaintiff did not properly serve Defendant despite ample
time to do so, Judge Mix recommended dismissing Defendant from the suit under Rule 4(c).
Plaintiff objects to the recommendation, alleging that since a pro se plaintiff’s pleading
standard is more liberal, the Court should have proactively searched through “extrinsic evidence”
to find declarations he produced “from Richard Steward and Nelson Merrill, and other materials
in support of the location of Defendant Lindsey Fish DePena, M.D.” (ECF No. 80 at 2).
However, the Court need not require the U.S. Marshal or the Clerk of the Court to search for
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defendants. See Hill v. Ortiz, No. 07-cv-00571-LTB-CBS, 2008 WL 2020289 at *6 (D. Colo.
May 9, 2008). While Rule 4(c) requires that the Court effect service of the Summons and
Complaint for incarcerated pro se plaintiffs, Plaintiff must provide the Court sufficient
information to do so. Fed. R. Civ. P. 4(c). See Hill at *6. Plaintiff’s pro se status does not entitle
him to application of different rules of civil procedure. Hall v. Belmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
In his document objecting to DePena’s dismissal, Plaintiff also requests “a limited
evidentiary hearing or plenary trial to find the facts.” (ECF No. 80 at 3). However, after
reviewing the Motions, the Recommendation, Plaintiff’s objection, the case file, and applicable
case law, the Court finds that such a hearing would not materially assist in resolving the issue.
IV.

CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff’s objections are overruled and that the

Recommendations (ECF No. 64) on Defendants’ motion to dismiss (ECF No. 38) and dismissing
Dr. DePena (ECF No. 63) are ADOPTED and made the Orders of this Court.
DATED this 16th day of October, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge 

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