Havens v. Clements et al

Filing 81

OPINION AND ORDER ADOPTING RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS: Mr. Havens' Objections (#61) are overruled, and the Recommendation 60 is ADOPTED. The Motion to Dismiss 39 filed by Defendan ts Rick Raemisch, Carmen Meyer, Hermella Assefa, Wonda Jacobs, Emmanuel Okai, and Jamie Harrelson is GRANTED IN PART AND DENIED IN PART. The motion is granted with respect to all claims against Defendants Raemisch, Meyer, Hermella, Assefa, Ja cobs, and Okai, except for the following: (1) §1983 claim for violation of the Eighth Amendment against Defendant Raemisch in his official capacity; (2) § 1983 claims for violation of the Eighth Amendment against Defendants Assefa, Jacobs, and Okai, in their individual capacities. Because Mr. Havens has been previously given the opportunity to amend his complaint, the Court does not reflexively grant him leave to amend. However, if Mr. Havens believes that he can cure the pleading d eficiencies identified here, within 21 days he may file an appropriate motion seeking leave to amend, tendering a proposed amended pleading that clearly indicates the material that is allegedly sufficient to overocme the pleading deficiencies. by Chief Judge Marcia S. Krieger on 3/24/14.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00452-MSK-MEH
DARRELL HAVENS,
Plaintiff,
v.
TOM CLEMENTS, in his individual capacity,
RICK RAEMISCH, in his official capacity as the Executive Director of the Colorado
Department of Corrections,
CARMEN MEYER, in her individual and official capacities,
HERMELLA ASSEFA, in her individual and official capacities,
KIMBERLY BOYDIN, in her individual and official capacities,
WONDA JACOBS, in her individual and official capacities,
EMMANUEL OKAI, in his individual and official capacities,
JAIME HARRELSON, in her individual and official capacities, and
PHYSICIANS HEALTHCARE PARTNERS,

Defendants.
OPINION AND ORDER ADOPTING
RECOMMENDATION AND GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS
THIS MATTER comes before the Court on the Recommendation (#60) of the
Magistrate Judge that the Defendants Rick Raemisch,1 Carmen Meyer, Hermella Assefa, Wonda
1

The Court takes judicial notice of the fact that Defendant Tom Clements is now deceased.
Pursuant to Fed. R. Civ. P. 25(d), Defendant Rick Raemisch, in his official capacity as Executive
Director of the Colorado Department of Corrections, has been automatically substituted as a
party to this action for the late Mr. Clements, in his official capacity. With regard to claims
against Mr. Clements in his individual capacity, Mr. Havens would have to pursue his action
against Mr. Clements’ estate. No motion for substitution under Rule 25 has been made by any
party, or by the decedent’s successor or representative. The Court notes, however, that it appears
the death has not previously been noted on the record. Thus, the parties are granted 30 days from
the date of this order in which to make a proper motion for substitution under Rule 25. Failure to
do so will result in dismissal of all claims against Mr. Clements in his individual capacity. At
this juncture, however, the Court does not address whether claims against Mr. Clements in his
individual capacity are subject to dismissal.
1

Jacobs, Emmanuel Okai, and Jamie Harrelson’s Motion to Dismiss (#39) be granted. The
Plaintiff Darrell Havens filed Objections (#61) to the Recommendation.
I. Background
The following facts relevant to the motion to dismiss are derived from the allegations
contained in the Amended Complaint (#9).
Mr. Havens, proceeding pro se,2 is currently in the custody of the Colorado Department
of Corrections (CDOC) and is incarcerated at the Denver Reception and Diagnostic Center
(DRDC) in Denver, Colorado. He was transferred to DRDC under the direction of the Executive
Director of CDOC.3 He is an “incomplete quadriplegic” and is “totally dependent on nurses and
Offender Care Aides.”
In November 2011, Mr. Havens was sent to a spine specialist for his “70 degree scoliosis
curvature.” The specialist determined that he needed a CT scan and then prepared him to do a
“fusion with bars and screws, permanent fixtures.” The CT scan was performed, but then the
Executive Director of CDOC, along with Defendant Physicians Healthcare Partners, “stopped
the procedure” because the “paperwork seemed like ‘cosmetic.’”
In May 2012, Mr. Havens’ provider recommended that he again see a spine specialist
2

In considering Mr. Havens’ filings, the Court is mindful of his pro se status, and accordingly,
reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such
liberal construction is intended merely to overlook technical formatting errors and other defects
in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). Pro se status does not relieve Mr. Havens of the duty to comply with the various
rules and procedures governing litigants and counsel or the requirements of the substantive law,
and in these regards, the Court will treat Mr. Havens according to the same standard as counsel
licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113
(1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
3

Mr. Havens refers to the late Tom Clements in his Amended Complaint. Because this opinion
and order addresses only official capacity claims against Mr. Clements as the former Director of
Prisons, the Court will refer to actions taken by Mr. Clements as actions by the Director of
Prisons.
2

because he was suffering severe bladder infections that had caused his catheter hole to close. He
was sent to Denver Health, where he saw ortho-spine doctor, Dr. Vanderveen. Dr. Vanderveen
recommended an immediate CT scan because Mr. Havens has “4 fractured vertebra[e]/1
broken.” Apparently the procedure was “approved,” but the next week “everything was stopped
by [Defendant] Physician Healthcare Partners” because they did not feel it was a “progressive
surgery.” Mr. Havens alleges that the recommended surgery would give him the ability to use
the restroom on his own, walk, and relieve pain. He further alleges that without the surgery, his
condition will continue to worsen.
Further, Mr. Havens has suffered “nonstop” bladder infections due to Defendants
Harrelson and Meyer “misusing” antibiotics. In one month, he was sent to the hospital by
ambulance three times, presumably due to infection. His antibiotic was also changed eight
times, which “wiped” his immune system and made him susceptible to viruses.
On one occasion, Mr. Havens suffered a seizure due to Defendant Harrelson refusing to
renew his medication, which she knew he could not go without.
Finally, Mr. Havens has been left lying in his own feces for hours because Defendants
Assefa, Jacobs, Boydin, and Okai refused to put him on the toilet. On December 9, 2012, Mr.
Havens pushed his nurse call button from 11:15pm – 2:20am, trying to get assistance. The
Defendants told him that he had to wait for Offender Care Aides to come at 4:00am.
After initial review of the Amended Complaint, the Court determined (#10) that Mr.
Havens asserts claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth
Amendments based on (1) the denial of corrective surgery by the Executive Director of CDOC
and Physician Healthcare Partners4; and (2) inadequate medical treatment claims against
4

The Defendant Physician Healthcare Partners has filed its own motion to dismiss (#15), which
is addressed by separate order.
3

Defendants Meyer, Assefa, Boydin,5 Jacobs, Okai, and Harrelson. Mr. Havens requests an order
requiring the performance of the corrective surgery and directing mandatory training on
decision-making for each named Defendant. He also seeks damages and costs.
Defendants Raemisch, Meyer, Assefa, Jacobs, Okai, and Harrelson (collectively, the
Defendants, for purposes of this opinion) move to dismiss Mr. Havens’ claims pursuant to Fed.
R. Civ. P. 12(b)(1) and 12(b)(6). They argue that the Eleventh Amendment bars all official
capacity claims, and that the Amended Complaint fails to state individual claims under § 1983.
The Defendants further contend that they are entitled to qualified immunity.
In response, Mr. Havens argues that his allegations are sufficient to state claims against
the Defendants. Specifically, he states that the Executive Director knew or had reason to know
of his medical condition because he has applied for executive clemency. He further argues that
his serious medical condition is obvious.
The matter was referred to the Magistrate Judge, who recommends that the Defendants’
motion to dismiss be granted in part and denied in part. The Recommendation found that (1) the
Eleventh Amendment bars claim against the Defendants in their official capacities only to the
extent Mr. Havens seeks damages; (2) the Amended Complaint fails to state a claim under the
Eighth Amendment against Defendants Raemisch, Harrelson, and Meyer; (3) the Amended
Complaint states an Eighth Amendment conditions of confinement claim against Defendants
Assefa, Jacobs, and Okai, and these Defendants are not entitled to qualified immunity on
that claim; (4) the Amended Complaint fails to state a claim under the Equal Protection Clause of
the Fourteenth Amendment; and (5) Mr. Havens may seek compensatory damages against

5

The record shows that, to date, Defendant Kimberly Boydin has not been served.
4

Defendants Assefa, Jacobs, and Okai to the extent he alleges he suffered bladder infections as a
result of being left to lie in his feces for hours.
Mr. Havens objects to the Recommendation, arguing that the Magistrate Judge
improperly found that the Amended Complaint fails to state Eighth Amendment claims against
Defendants Clements,6 Harrelson, and Meyer. He asserts that he has documentation that the
recommended surgery would improve his mobility, which would in turn reduce urinary tract
infections, compression sores, and lung infections. He further asserts that the Executive Director
was given his complete medical file, and therefore knew that Mr. Havens would continue to
suffer constant infections and sores if the surgery was denied.
II. Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties
may file specific, written objections within fourteen days after being served with a copy of the
recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The district court shall make a
de novo determination of those portions of the recommendation to which timely and specific
objection is made. U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057,
1060 (10th Cir. 1996). Here, Mr. Havens filed untimely Objections to the Recommendation.
Nevertheless, the Court reviews the matter under the de novo standard of Rule 72(b).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-pled allegations in the Amended Complaint (#9) as true and view those allegations in the
light most favorable to Mr. Havens. Stidham v. Peace Officer Standards and Training, 265 F.3d
1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the
6

Mr. Havens continues to refer to the late Tom Clements although Defendant Raemisch has been
substituted as a party in his official capacity and there has been no substitution of the proper
party for claims against Mr. Clements in his individual capacity.
5

Complaint, any documents attached thereto, and any external documents that are referenced in
the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean
Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).
A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on
its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To make such an assessment, the
Court first discards those averments in the Complaint that are merely legal conclusions or
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Id. at 1949-50. The Court takes the remaining, well-pled factual contentions as
true and ascertains whether those facts, coupled with the law establishing the elements of the
claim, support a claim that is “plausible” or whether the claim being asserted is merely
“conceivable” or “possible” under the facts alleged. Id. at 1950-51. What is required to reach
the level of “plausibility” varies from context to context, but generally, allegations that are “so
general that they encompass a wide swath of conduct, much of it innocent,” will not be
sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
III. Analysis
A. Official Capacity Claims
Mr. Havens asserts claims against each Defendant in both their individual and official
capacities. The Defendants argue that claims brought against them in their official capacities are
barred under the Eleventh Amendment of the United States Constitution.
Under the Eleventh Amendment, sovereign immunity prohibits federal courts from
entertaining suits against states brought by their own citizens without their consent. Port Auth.
Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). This rule extends to state agencies

6

functioning as an arm of the state. Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S.
274, 280 (1977). Because an official capacity suit is, in all respects other than name, to be
treated as a suit against the official’s respective entity, the Eleventh Amendment provides
immunity when state officials are sued for damages in their official capacity. Peterson v.
Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013).
There are, however, exceptions to application of Eleventh Amendment immunity. One
such exception, known as the Ex Parte Young exception, permits “suits against state officials
seeking to enjoin alleged ongoing violations of federal law.” Crowe v. Dunlevy, P.C. v. Stidham,
640 F.3d 1140, 1154 (10th Cir. 2011). In determining whether the Ex Parte Young exception
applies, a court need only conduct a straightforward inquiry into whether the complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as prospective. Id. at
1155.
The Court finds that all § 1983 claims asserted by Mr. Havens for which he seeks
damages against the Defendants in their official capacities are barred by the doctrine of
sovereign immunity under the Eleventh Amendment. These claims are properly dismissed under
Rule 12(b)(1).
However, Mr. Havens also seeks prospective relief in the form of an order requiring
corrective surgery. This request for relief relates directly to his allegation that by denying
surgery, the Executive Director of CDOC has violated his rights under the Eighth Amendment.
The Court finds that these allegations fall within the Ex Parte Young exception to the Eleventh
Amendment because Mr. Havens alleges an ongoing violation of federal law in the Executive
Director’s denial of surgery, and he seeks prospective relief. Thus, Mr. Havens’ §1983 claim

7

against Defendant Raemisch in his official capacity may proceed, so long as the complaint states
a constitutional violation by the Defendant.
Mr. Havens asserts that the Executive Director of CDOC violated his right to be free
from cruel and unusual punishment under the Eighth Amendment by denying him the
opportunity to have corrective surgery for his “70 degree scoliosis curvature.”
The Eighth Amendment’s prohibition against cruel and unusual punishment is violated
when prison officials “act deliberately and indifferently to serious medical needs of prisoners in
their custody.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Such a claim has both an
objective and a subjective component. To satisfy the objective component, a prisoner’s medical
need must be sufficiently serious, a standard that can be met when either a doctor has diagnosed
the need as requiring treatment or the need is so obvious that even a lay person would recognize
the need for a doctor’s attention. Id. To satisfy the subjective component — that is, to show the
requisite deliberate indifference — a prisoner must establish that the defendant “knew [the
prisoner] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it.” Id.
Although an Eighth Amendment claim regarding medical treatment generally concerns a
medical professional’s deliberate indifference in failing to treat a prisoner’s serious medical need
properly, it may also arise when a prison official acts with deliberate indifference in preventing a
prisoner from receiving treatment or denying him access to medical personnel capable of
evaluating the need for treatment. See Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir.
2000). The Eighth Amendment may be violated if the official “knows that his role in a particular
medical emergency is solely to serve as a gatekeeper for other medical personnel capable of

8

treating the condition, and if he delays or refuses to fulfill that . . . role due to deliberate
indifference.” Id.
The Court finds that the complaint sufficiently alleges that Mr. Havens has a serious
medical need. It alleges that Mr. Havens has been seen by spine specialists who have
recommended that his condition be treated with surgery. It further alleges that he has suffered
severe infections due to his condition, and that his condition will worsen without the surgery.
Finally, it alleges that the procedure would increase his allow him to go to the bathroom on his
own, to walk, and would relieve pain. Even without the recommendations for surgery by spine
specialists, Mr. Havens’ inability for self-care, resulting in infection and pain, indicate a medical
need obvious to even a lay person.
The subjective component of the claim is a closer question. Construing Mr. Havens’
allegations liberally, the Court finds that the complaint sufficiently alleges that the Executive
Director acted with deliberate indifference in denying corrective surgery. The complaint alleges
that, at least in 2011, the Executive Director made the decision to “stop” the surgery because it
seemed like it was cosmetic. It can be inferred from these allegations that in making a decision
regarding the necessity of the surgery, the Executive Director had access to Mr. Havens’ medical
records and the recommendations of the spine specialists. Thus, it is plausible that the Executive
Director knew the reasons why surgery was being recommended and what risks were posed if
surgery was not performed. Although the allegations do not provide a great deal of detail with
regard to deliberate indifference, the Court finds that dismissal of the claim is inappropriate at
this stage of the proceeding.

9

Accordingly, the motion is denied with respect to Mr. Havens’ §1983 claim for violation
of the Eighth Amendment against Defendant Raemisch in his official capacity. All other claims
against the Defendants in their official capacities are dismissed.
B. Individual Claims
Mr. Havens asserts § 1983 claims against Defendants Harrelson, Meyer, Assefa, Jacobs,
and Okai, in their individual capacities, for alleged violations of the Eighth and Fourteenth
Amendments. The Defendants move to dismiss these claims, arguing that the complaint fails to
state a claim under the Eighth or Fourteenth Amendments. To the extent the complaint does
state a claim, the Defendants assert the defense of qualified immunity.
1. Eighth Amendment
Generally, Mr. Havens alleges that Defendants Harrelson, Meyer, Assefa, Jacobs, and
Okai violated his right to be free from cruel and unusual punishment in the following ways: (1)
by “misusing” antibiotics and failing to renew his medication, and (2) refusing to place him on
the toilet and thereby leaving him to sit in his own feces for hours. The Court notes that these
allegations assert two varieties of an Eighth Amendment claim — inadequate medical care and
conditions of confinement. Because the claims arise in different contexts, the Court addresses
them up separately.
a. Inadequate medical care by Defendants Harrelson and Meyer
As noted above, the Eighth Amendment’s prohibition against cruel and unusual
punishment is violated when prison officials act “deliberately and indifferently to serious
medical needs of prisoners in their custody.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999). To state a claim of deliberate indifference, a plaintiff must allege both an objective
component and subjective component. The objective component is satisfied where a prisoner’s

10

medical need is sufficiently serious. Id. To satisfy the subjective component — that is, to show
the requisite deliberate indifference — a prisoner must allege that the defendant “knew [the
prisoner] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it.” Id.
Assuming that the complaint alleges that Mr. Havens’ medical need was serious, the
Court finds that the allegations are insufficient with regard to deliberate indifference. Mr.
Havens alleges that Defendant Harrelson refused to renew his medication, even though he knew
Mr. Havens could not go without it, and that Mr. Havens suffered a seizure as a result. He
further alleges that Defendants Harrelson and Meyer “misused” antibiotics by changing them
eighth times over a month, which caused his immune system to be “wiped” so that he was
susceptible to viruses and which caused him to suffer “nonstop” bladder infections. There is no
allegation, however, that Defendants Harrelson or Meyer knew that Mr. Havens would suffer a
seizure or subsequent infections due to their failure in renewing his medication or by changing
his antibiotic, or that they deliberately disregarded such risks when taking such actions. Indeed,
the inference that can be drawn with regard to the changing antibiotics is that the Defendants
were attempting to treat the infections with antibiotics and that they had to change them as
certain antibiotics were not effective. Accordingly, the Court finds that the complaint fails to
state a § 1983 claim under for violation of the Eighth Amendment against Defendants Harrelson
and Meyer. The motion to dismiss is granted with respect to these claims.
b. Conditions of confinement against Defendants Assefa, Jacobs, and Okai
The Eighth Amendment requires prison officials to maintain “humane conditions of
confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). As in all Eighth Amendment
claims, to show a violation of this requirement a prisoner must show an objective component and

11

a subjective component. First, he must show that the conditions of confinement posed a
“substantial risk of serious harm” to inmate health or safety. Id. at 834. In order to satisfy this
prong, a prisoner must show that the conditions were more than uncomfortable. Id.
Second, the prisoner must show that officials acted with a “deliberate indifference” to the
risk. Id. The subjective prong requires a showing that the officials were actually aware of the
risk and that they failed to take “reasonable measures to abate it.” Id.
Mr. Havens alleges that Defendant Assefa, Jacobs, and Okai refused his requests to place
him on the toilet and left him lying in his own feces for hours. Specifically, Mr. Havens alleges
that on December 9, 2012, he pushed his nurse call button from 11:15pm to 2:30am trying to get
assistance to go to the toilet, but he was told that he would have to wait for Offender Care Aides
to come at 4:00am. As a result, he was left lying in his own feces for several hours.
An inquiry into conditions of confinement necessarily relies on the particular facts of
each situation. The “circumstances, nature, and duration” of the challenged conditions must be
considered, with no single factor controlling the outcome. DeSpain v. Uphoff, 264 F.3d 965, 974
(10th Cir. 2001). Generally, the severity and duration of deprivations are inversely proportional,
such that minor deprivations suffered for short periods would not rise to an Eighth Amendment
violation, while substantial deprivations of shelter, food, drinking water, and sanitation may meet
the standard despite a shorter duration. Id.
In DeSpain, the Tenth Circuit acknowledged that “exposure to human waste carries
particular weight in the conditions calculus.” This is so because exposure to humane waste, like
few other conditions of confinement, evokes both health concerns and the more generalized
standards of dignity embodied in the Eighth Amendment. Id.; see also McBride v. Deer, 240

12

F.3d 1287, 1292 (10th Cir. 2001) (conditions of confinement sufficiently serious where inmate
held in a feces-covered cell for three days).
With these principles in mind, the Court finds that the allegations are sufficient to meet
the objective prong of the Eighth Amendment analysis. Although Mr. Havens alleges that he
was exposed to the unsanitary condition for hours, as opposed to days, the Court finds that
seriousness of the alleged deprivation could meet the Eighth Amendment standard despite the
short duration. Mr. Havens was not only exposed to human waste, but he alleges that he had to
lay in it for several hours. Because Mr. Havens is completely dependent on others to move him
to and from the toilet, it is reasonable to infer that Mr. Havens was unable to avoid lying in own
feces until someone else helped him.
The Court also finds that the complaint sufficiently alleges deliberate indifference by
Defendants Assefa, Jacobs, and Okai. It can be inferred that, due to Mr. Havens’ condition, the
Defendants were aware that without assistance in toileting Mr. Havens would likely soil himself
and would be unable to remedy the problem. The Defendants acknowledged his requests for
assistance to use the toilet, but despite the impact to Mr. Havens refused to assist him.
Accordingly, the Court finds that the complaint states a § 1983 claim for violations of the Eighth
Amendment against Defendant Assefa, Jacobs, and Okai.
Although the Court finds that the complaint states a constitutional violation by
Defendants Assefa, Jacobs, and Okai, the Defendants assert that they are entitled to qualified
immunity. In order to overcome the defense of qualified immunity, the right alleged to have
been violated must have been clearly established in the law at the time of the alleged violation.
Pearson v. Callahan, 555U.S. 223, 232-35 (2009). For a constitutional right to be clearly
established, its contours must be “sufficiently clear that a reasonable official would understand

13

that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). A plaintiff
demonstrates that a constitutional right is clearly established by referring to cases from the
Supreme Court, the Tenth Circuit, or the weight of authority from other circuits. Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
The Court finds that the right to be free from cruel and unusual punishment by preventing
exposure to human feces was clearly established at the time of the alleged violation by
Defendants Assefa, Jacobs, and Okai. The Tenth Circuit in DeSpain v. Uphoff, 264 F.3d 965,
974-75 (10th Cir. 2001), acknowledged the severity of exposing an inmate to human waste.
Although DeSpain does not specifically involve a situation where the defendant refused to place
a disabled individual on the toilet to avoid him lying in feces, the opinion informs officials that
the Tenth Circuit and other courts have recognized that intentional exposure to human waste can
state an Eighth Amendment conditions of confinement claim. Accordingly, at this state of the
proceeding, the Defendants Assefa, Jacobs, and Okai are not entitled to qualified immunity.
2. Fourteenth Amendment
In the initial review order (#10), the Court stated that Mr. Havens “is asserting a violation
of his Eighth and Fourteenth Amendment rights.” The order did not elaborate on the scope of
these claims. Nevertheless, the Defendants have interpreted the statement as acknowledging that
Mr. Havens asserts a claim under the Fourteenth Amendment. They interpret Mr. Havens’
allegations as attempting to assert a due process claim.
The Court disagrees with the Defendants’ interpretation of the order and of Mr. Havens’
allegations. The Court understands the order to say that Mr. Havens asserts claims under the
Eighth Amendment, as applied against the states through the Fourteenth Amendment.
Nevertheless, the Court acknowledges that claim three of the Amended Complaint is titled

14

“Violation of Equal Rights.” Thus, at most, the Court interprets Mr. Havens’ allegations as
asserting a violation of the Equal Protection Clause of the Fourteenth Amendment.
The Equal Protection Clause provides that “[n]o State shall make or enforce any law
which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend XIV, § 1. This clause prohibits the government from treating similarly situated
individuals differently. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985).
Here, Mr. Havens alleges that he “has been deprived his constitution[al] equal rights by
being denied access [] to the restroom or help going and has been left several times lying in feces
and also left sitting for hours by” Defendants Assefa, Jacobs, and Okai. He further alleges that
the Executive Director “has failed to provide equal living, working, [sic] education that able
body offenders are offered and is caged like animals [sic] for the only reason of his medical
condition.” He also states that he “has been denied medical surgeries that specialist have [sic]
requested are needed and not just suggested because his condition will continue to worsen.”
The Court infers from these allegations that Mr. Havens contends that the alleged conduct
is “different treatment” based on his classification as a quadriplegic. As such, with respect to
Defendants Assefa, Okai, and Jacobs, the complaint fails to allege that Mr. Havens is treated
differently than similarly situated non-quadriplegic inmates. That is, there are no allegations that
the Defendants assist non-quadriplegic inmates to the toilet or other hygienic issues, and there
are no allegations that the Defendants refused to assist Mr. Havens because he is quadriplegic.
Similarly, there is no allegation that the Executive Director has approved similar corrective
surgeries for non-quadriplegic inmates, or that he denied Mr. Havens surgery because he is

15

quadriplegic. Accordingly, the Court finds that the complaint fails to state a § 1983 claim for
violation of the Equal Protection Clause against the Defendants.
C. 42 U.S.C. § 1997e(e)
With respect to the remaining claims against Defendants Assefa, Jacobs, and Okai, the
Defendants argue that the claims are barred under the Prison Litigation Reform Act, 42 U.S.C.
§1997e(e) because Mr. Havens seeks only compensatory damages and he has not alleged a
physical injury.
Section 1997e(e) provides: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury[.]” This provision serves as a
limitation on the relief a prisoner can receive for injuries suffered while in custody. Perkins v.
Kansas Dept. of Corrections, 165 F.3d 803, 807 (10th Cir. 1999). Although §1997e(e) bars
recovery of compensatory damages for failure to allege physical injury, it does not bar recovery
of nominal and punitive damages or declaratory or injunctive relief. Searles v. Van Bebber, 251
F.3d 869, 881 (10th Cir. 2001).
Although, the complaint alleges that the Defendants refused to help Mr. Havens to the
toilet and he was left lying in his own feces for hours, it is unclear what physical injury, if any,
Mr. Havens suffered. However, construing the pleading liberally, it is possible that allegations
of bladder infections may be tied to exposure to his feces. Accordingly, the Court declines to
dismiss Mr. Havens’ claims on the basis that he failed to allege a physical injury under §1997(e).

16

IV. Conclusion
For the forgoing reasons, Mr. Havens’ Objections (#61) are overruled, and the
Recommendation (#60) is ADOPTED. The Motion to Dismiss (#39) filed by Defendants Rick
Raemisch, Carmen Meyer, Hermella Assefa, Wonda Jacobs, Emmanuel Okai, and Jamie
Harrelson is GRANTED IN PART AND DENIED IN PART. The motion is granted with
respect to all claims against Defendants Raemisch, Meyer, Hermella, Assefa, Jacobs, and Okai,
except for the following: (1) §1983 claim for violation of the Eighth Amendment against
Defendant Raemisch in his official capacity; (2) § 1983 claims for violation of the Eighth
Amendment against Defendants Assefa, Jacobs, and Okai, in their individual capacities.
Because Mr. Havens has been previously given the opportunity to amend his complaint,
the Court does not reflexively grant him leave to amend. However, if Mr. Havens believes that
he can cure the pleading deficiencies identified here, within 21 days he may file an appropriate
motion seeking leave to amend, tendering a proposed amended pleading that clearly indicates the
material that is allegedly sufficient to overcome the pleading deficiencies.
Dated this 24th day of March, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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