Brooks v. Oba et al

Filing 59

ORDER granting 36 Motion to Dismiss in part; denying 49 Motion for Preliminary Injunction. Plaintiff is given leave to amend certain claims. A Second Amended Complaint, should Plaintiff wish to file one, is due on or before November 17, 2014. By Magistrate Judge Craig B. Shaffer on 10/17/14. Unpublished cases attached(cbslc2)

United States District Court,
D. Colorado.
Michael DOYLE, Plaintiff,
v.
Sgt. CELLA, et al., Defendants.
Civil Action No. 07–cv–01126–WDM–KMT.
Sept. 30, 2008.
Michael Doyle, Sterling, CO, pro se.
Jess Alexander Dance, Robert Charles Huss, Colorado Attorney General's Office, Denver, CO,
for Defendants.
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
MILLER, Judge.
*1 This matter is before me on a recommendation of Magistrate Judge Kathleen M.
Tafoya, issued August 21, 2008 (Docket No. 80), recommending that Defendants' motions to
dismiss (Docket No. 24) be granted and Plaintiff's motions for preliminary injunctions (Docket
Nos. 31, 61, 70, 75) be denied. Plaintiff filed a timely objection to the recommendation and,
therefore, is entitled to de novo review of the portions of the recommendation to which objection
was made. 28 U.S.C. § 636(b); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th
Cir.1988). I must construe Plaintiff's pleadings liberally and hold him to a “less stringent
standard” because he is proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)
(“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972))). For the reasons set forth below, I accept Magistrate Judge Tafoya's recommendation as
modified.
Background
Plaintiff has been incarcerated at the Colorado Territorial Correctional Facility (“CTCF”)
at all times relevant to this action. This action was filed pursuant to 42 U.S.C. § 1983 by Plaintiff
and alleges three claims for relief. Claim One alleges a violation of Plaintiff's right to due
process because Plaintiff was placed on restricted privilege (“RP”) status for fourteen and a half
months without being provided a disciplinary hearing. Claim Two alleges (1) one of Plaintiff's
disciplinary charges for advocating or creating a facility disturbance was based on false reports
submitted by Sergeant Cella (“Cella”) and Correctional Officer Reyes (“Reyes”); (2) Cella and
Reyes destroyed Plaintiff's property in his cell including his headphones and his prescription
glasses; (3) Plaintiff was denied the ability to show a surveillance tape or call Cella or Reyes
during his disciplinary hearing; (4) Plaintiff was placed in segregation pending the disciplinary
hearing; and (5) Cella made additional false reports upon which another disciplinary charge was
filed. Claim Three alleges that he has been denied access to legal materials because the legal
information he ordered was returned to sender for failure to include the sending attorney's name
and registration number on the exterior of the package and the letters he has sent to various law

firms were “refused.” Throughout his complaint, Plaintiff cites to numerous Colorado Code of
Penal Discipline (“CPOD”) cases although he does not necessarily specifically link his
allegations to the results of those cases.
Pursuant to Colo. R. Civ. P. 106(a)(4), which provides relief in Colorado courts “[w]here
any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial
functions has exceeded its jurisdiction or abused its discretion”, Plaintiff filed a claim in August
2006 in the Fremont County District Court (“District Court”) (the “state court action”). This
action named all defendants that are named in this suit except for Warden Abbott and was
admittedly based on many of the same allegations that form the basis for Plaintiff's section 1983
claims in this case. The state court action did, however, allege additional bases for relief
including attacks on his original conviction, First Amendment challenges, Fourth Amendment
violation allegations, and potentially an attack on the entire prison disciplinary system. On
October 11, 2006, the state court action was dismissed by a magistrate judge because (1) the state
court lacked subject matter jurisdiction over all allegations that did not seek review of a specific
COPD hearing because these allegations were not “judicial or quasi-judicial” as required to bring
a complaint under Colo. R. Civ. P. 106(a)(4) and (2) the remainder of the complaint was
unintelligible and failed to comply with Colo. R. Civ. P. 8 which requires a “short and plain
statement of the facts.” Plaintiff sought to appeal this decision but the appeal was dismissed for
lack of jurisdiction because Plaintiff incorrectly appealed to the Colorado Court of Appeals
rather than to the District Court as required by Colorado law for decisions by magistrate judges.
See Colo. R. Mag. 7. Thereafter, in May 2007, Plaintiff initiated this lawsuit pursuant to 42
U.S.C. § 1983.
Standard of Review
*2 A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) alleges that the complaint fails
“to state a claim upon which relief can be granted.” A complaint must be dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a
plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. (citations omitted). “Factual allegations must be enough to raise a right to relief above
the speculative level.” Id. The court must accept as true all well-pleaded facts and construe all
reasonable allegations in the light most favorable to the plaintiff. United States v. Colorado
Supreme Court, 87 F.3d 1161, 1164 (10th Cir.1996).
Discussion
1. Defendants' Motion to Dismiss
First, Magistrate Judge Tafoya recommends that the claims against Defendants Abbott
and Foshee be dismissed because Plaintiff has failed to allege personal participation by these
defendants. I agree. “[P]ersonal participation is an essential allegation in a § 1983 claim.”
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (citations omitted). Indeed, to be liable,
“the supervisor must be personally ‘involved in the constitutional violation,’ and a ‘sufficient
causal connection’ must exist between the supervisor and the constitutional violation.” Serna v.
Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir.2006) (quoting Rios v. City of Del Rio, 444

F.3d 417, 425 (5th Cir.2006)). This means that the plaintiff must demonstrate that the supervisor
“acted knowingly or with ‘deliberate indifference’ that a constitutional violation would occur.”
Id.; accord Jenkins v. Wood, 81 F.3d 988, 994–95 (“[T]he plaintiff must establish ‘a deliberate,
intentional act by the supervisor to violate constitutional rights.’ “ (quoting Woodward v. City of
Worland, 977 F.2d 1392, 1399 (10th Cir.1992))). Furthermore, conclusory allegations are not
sufficient, id., nor are allegations of mere negligence, Serna, 455 F.3d at 1151.
In this case, the complaint's only mention of Defendants Abbott and Foshee is in the
description of the parties, which alleges “Associate Warden Foshee denied all my Grievances as
frivolous and petty on all the issues in this Document” and Warden Abbott “was made aware of
what staff was doing and ignored it.” (Compl. At 3.) These allegations are insufficient to
establish an “sufficient causal connection” between the defendants and the alleged constitutional
violations as they are no more than conclusory allegations, demonstrate nothing more than
negligence at most, and do not demonstrate that the defendants acted with knowledge that a
constitutional violation would occur. As Plaintiff's objections do not remedy this defect, but
merely argue that Defendants Abbott and Foshee should be vicariously liable, all claims against
Defendants Abbott and Foshee, if any, shall be dismissed.
*3 Magistrate Judge Tafoya also recommends that the complaint be dismissed on res
judicata grounds because the District Court previously dismissed Plaintiff's state court action
which was based on essentially the same grounds as the current one. I disagree. Res judicata bars
a subsequent claim if four elements are met: “(1) the prior suit must have ended with a judgment
on the merits; (2) the parties must be identical or in privity; (3) the suit must be based on the
same cause of action; and (4) the party must have had a full and fair opportunity to litigate the
claim in the prior suit.” In re Mersmann, 505 F.3d 1033, 1049 (10th Cir.2007) (citing Nwosun v.
Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). In this case, the prior suit did not
end with a final judgment on the merits as the state court action was dismissed for lack of
jurisdiction and failure to comply with the state procedural rule. Indeed, “jurisdictional
dismissals are not ‘on the merits.’ “ See Park Lake Res. Ltd Liab. Co. v. USDA, 378 F .3d 1132,
1136 (quoting Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir.1983)). Furthermore, I
am not aware of any case the affords res judicata preclusive effect to a dismissal for failure to
provide a short and plain statement of the case. Therefore, I must address the other arguments set
forth in Defendants' motion to dismiss.
Defendants argue that all claims relating to any COPD cases should be dismissed under
Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has
not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the

complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.
512 U.S. at 487 (emphasis in original). This rule applies whenever the decision would “implicitly
question the validity of a conviction or duration of sentence.” Muhammad v. Close, 540 U.S.
749, 751, 754–55 (2004). Furthermore, the requirement is applicable to “challenges to
punishments imposed as a result of prison disciplinary infractions.” Cardoso v. Calbone, 490
F.3d 1194, 1199 (10th Cir.2007) (citing Edwards v. Balisok, 520 U.S. 641, 648 (1997)).
*4 In this case, as all of Plaintiff's challenges to his COPD cases implicate the validity of those
convictions, they are barred by Heck as Plaintiff has not demonstrated that the convictions have
been reversed, expunged, invalidated, or called into question by a writ of habeas corpus. I note
that Plaintiff's convictions in the COPD cases affected the length of his sentence and/or imposed
other punishment including loss of privileges. Plaintiff's response to the motion to dismiss
merely sets forth with greater particularity the constitutional violations that he alleges occurred
and does not argue that he has obtained favorable judgments for any of the COPD cases.
Therefore, to the extent they seek damages, all claims that Plaintiff brings based on his COPD
convictions shall be dismissed. These claims include that Plaintiff's disciplinary charges were
based on false reports, that Plaintiff was denied the opportunity to show a surveillance tape or
call witnesses at his hearing, and any other claim that Plaintiff makes by referencing the COPD
cases.
Defendants next argue that Plaintiff's claims regarding being placed on RP status (Claim
One) and being placed in segregation (part of Claim Two) must be dismissed because Plaintiff
has no liberty interest in remaining in the general population or in retaining any privileges during
his incarceration. “[T]he Constitution itself does not give rise to a liberty interest in avoiding
transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). Rather, a state “may under certain
circumstances create liberty interests which are protected by the Due Process Clause.” Sandin v.
Conner, 515 U.S. 472, 483–84 (1995). To determine if a state has created such a liberty interest,
a court must look to the “whether the condition imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484; accord Wilkinson, 545 U.S.
at 223 (quoting Sandin, 515 U.S. at 484).
In this case, Plaintiff's response to the motion to dismiss alleges that he suffered “atypical
and significant hardship” during his RP status and administrative segregation including (1)
having his TV, lamp, fan, glasses, and headphones taken away; (2) being put in a punishment
cell for fourteen and a half months; (3) being put in a punishment cell with “AIDS inmates”
when he is not HIV-positive; (4) being put in a punishment cell with younger “want to be gang
bangers”; (5) not being able to talk to other inmates; and (6) “being the Case Managers [sic]
victim of Deliberate Indifference I became a target from other staff.” (Docket No. 28 at 9–10.)
Defendants argue that these allegations are insufficient to establish a liberty interest. I agree with
Defendant.
First, with respect to administrative segregation, an inmate does not have an inherent
liberty interest in remaining in the general population and avoiding being placed in
administrative segregation. See Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir.2006).

Nonetheless, the duration and degree of the segregation may be so severe as to implicate the due
process clause. Id. In this case, however, Plaintiff's allegations concerning his segregation are
insufficient to demonstrate a liberty interest under Sandin as Plaintiff provides no specific
information regarding the length or conditions of his placement in administrative segregation
such that I may determine that they “imposed atypical or significant hardship.” FN1 Sandin, 515
U.S. at 484. Indeed, he alleges no more than he was placed in administrative segregation pending
a disciplinary hearing—which has been held constitutional, see Childs v. Novak, 36 Fed. Appx.
364, 364 (10th Cir.2002) (unpublished) FN2 (determining that Sandin barred claim that placement
in punitive administrative segregation pending a disciplinary hearing violated constitutional
rights)—and that he was unable to speak to other inmates. These allegations are insufficient to
demonstrate “atypical or significant hardship.” Sandin, 515 U.S. at 484.
FN1. I note that the Tenth Circuit has determined that sua sponte dismissal of administrative
segregation claims pursuant to 28 U.S.C. § 1915 is not appropriate without a detailed evaluation
of how the plaintiff's confinement to administrative segregation compared to other inmates'
confinement. See Trujillo, 465 F.3d at 1225 (“[A] district court errs in sua sponte dismissing a
prisoner's due process claim under § 1915 if it does not have sufficient evidence before it to
‘fully address both the duration and degree of the plaintiff's restrictions as compared with other
inmates.’ “ (quoting Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 809 (10th Cir.1999))); Gaines
v. Stenseng, 292 F.3d 1222, 1226 (10th Cir.2002) (“Although the court might properly conclude
at the summary judgment stage that there is sufficient evidence to establish that such segregation
mirrors conditions imposed upon inmates in administrative segregation and protective custody,
and that therefore the complaint should be dismissed, it is inappropriate to invoke § 1915(e) to
dismiss the claim at this stage in the litigation without the benefit of any such evidence.” (citing
Perkins, 165 F.3d at 809)). There is no similar rule, however, regarding dismissals based on the
defendants' motion to dismiss. Therefore, I conclude that it is proper to evaluate Plaintiff's claims
regarding administrative segregation under the standard Rule 12(b)(6) even though there is
insufficient evidence on the record to engage in a complete evaluation of Plaintiff's
administrative segregation as compared to that of other inmates.
FN2. Although the Tenth Circuit does not allow citation to unpublished opinions for precedential
value, unpublished opinions may be cited for persuasive value. 10th Cir. R. 32.1.
*5 With respect to Plaintiff's placement on RP status for fourteen and a half months, I
conclude that Plaintiff has also not demonstrated a liberty interest. First, I conclude that
Plaintiff's liberty interests were not violated by restriction from possession his television, fan,
lamp, glasses, and headphones while on RP status. “While an inmate's ownership of property is a
protected property interest that may not be infringed without due process, there is a difference
between the right to own property and the right to possess property while in prison.” Hatten v.
White, 275 F.3d 1208, 1210 (10th Cir.2002) (citations omitted). Therefore, restrictions regarding
possessions in a cell do not implicate a liberty interest as the prison has the discretion to
determine what property an inmate may possess in his cell. See Cosco v. Uphoff, 195 F.3d 1221,
1224 (10th Cir.1999) (determining that prison regulations articulating what inmates could
possess in their cell did not create a liberty interest in possessing those items under Sandin, 515
U.S. at 484). Furthermore, placement in a “punishment cell” with other inmates that Plaintiff
does not like also does not implicate a liberty interest. Although there is a Fourth Amendment

interest in being free from bodily harm, see Cortez v. McCauley, 478 F.3d 1108, 1125–26 (10th
Cir.2007) (“ ‘[T]he interests protected by the Fourth Amendment are not confined to the right to
be secure against physical harm; they include liberty, property, and privacy interests-a person's
sense of security and individual dignity.’ “ (quoting Holland ex rel. Overdorff v. Harrington, 268
F.3d 1179, 1196 (10th Cir.2001))), Plaintiff has presented no specific allegations regarding a
physical threat resulting from placement in “punishment cells” with the specified other inmates.
Defendants also argue that Plaintiff's claims regarding Cella and Reyes actions in his cell
should be dismissed. First, they argue that if Plaintiff's claim is based on negligence, section
1983 does not provide a remedy. I agree as “ ‘[l]iability under 1983 must be predicated upon a
deliberate deprivation of constitutional rights by the defendant,’ and not on negligence.” Jojola v.
Chavez, 55 F .3d 488, 490 (1995); accord Darr v. Town of Telluride, 495 F.3d 1243, 1257 (10th
Cir.2007) (“Negligence is not a basis of liability under § 1983.”). Second, Defendants argue that
any claim based on intentional acts by Cella and Reyes must be dismissed because there is an
adequate post-deprivation remedy available to Plaintiff. I agree. “The intentional deprivation of
property is not a fourteenth amendment violation if adequate state post-deprivation remedies are
available.” Durre v. Dempsey, 869 F.2d 543, 546 (10th Cir.1989) (citing Hudson v. Palmer, 468
U.S. 517, 533 (1984)). Colorado provides that a prisoner may sue a prison official for intentional
deprivations of property. See Colo.Rev.Stat. § 24–10–105 (authorizing tort actions against public
employees if their actions were “willful and wanton”). Therefore, I conclude that Plaintiff's
claims based on any deprivation of property in his cell should be dismissed.FN3
FN3. I note that it appears that Plaintiff did not respond to this argument in his brief. ( See
Docket No. 28.)
*6 Defendants' next argument is that Plaintiff's claim regarding legal access fails as he
has not shown that he suffered any actual injury. “[T]he Fourteenth Amendment only guarantees
the right of access to the courts.” Penrod v. Zavaras, 94 F.3d 1399, 1403 (10t Cir.1996).
Therefore, to sustain a claim for a Fourteenth Amendment violation, an inmate must that
demonstrate that the denial of legal resources hindered his efforts to pursue a nonfrivolous legal
claim. Id. (citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). Defendants argue that Plaintiff has
failed to demonstrate that his ability to pursue a nonfrivolous claim was hindered by the return of
the legal information sent to Plaintiff by the Center for Constitutional Rights and Alpine Legal
Services. Plaintiff's only response to this argument is to state that the mail can be opened and
read. However, this does not remedy the defect. Therefore, I conclude that Plaintiff's claim based
on the rejection of Plaintiff's mailed legal information should be dismissed. Furthermore, I also
conclude that Plaintiff's allegations that his outgoing mail was refused by the addressees fails to
specify any conduct by any named defendant. As personal participation is necessary to state a
claim under section 1983, these claims must also be dismissed. See Mitchell v. Maynard, 80 F.3d
at 1441 (citation omitted).
Finally, I note that the remainder of Plaintiff's claims, if any, should be dismissed for
failure to comply with Fed.R.Civ.P. 8(a). Rule 8(a) provides that “[a] pleading that states a claim
for relief must contain ... (2) a short and plain statement of the claim showing that the pleader is
entitled to relief.” A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) if it fails to
comply with Fed.R.Civ.P. 8(a)(2)'s requirement of a short and plain statement and there appears

to be no set of facts upon which relief may be granted. Monument Builders of Greater Kan. City,
Inc. v. Am. Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir.1989)); accord Monroe v. Owens, 38
Fed. Appx. 510, 513 (10th Cir.2002) (unpublished) (“Under Rule 12(b)(6), a district court may
dismiss with prejudice a complaint that fails to comply with Federal Rule of Civil Procedure
8(a)(2)'s requirement of a ‘short and plain statement of the claim’ if there appears to be no set of
facts on which the plaintiff may state a claim for relief.” (quoting Monument Builders, 891 F.2d
at 1480)); Abdelsamed v. United States, 13 Fed. Appx. 883, 884 (same). “[T]o state a claim in
federal court, a complaint must explain what each defendant did to him or her; when the
defendant did it; how the defendant's action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir.2007) (describing how a district court may articulate the requirements of
Rule 8 to a lay person). In this case, although some claims for relief are discernable—all of
which have been addressed supra—many other claims may be contained in the rather lengthy
and meandering complaint. These claims for relief, however, are insufficient under Rule 8(a) as
they are, at the very least, unspecific and difficult to discern from the complaint, and, therefore,
shall be dismissed pursuant to Rule 12(b)(6). I note that this includes any claims based on his
COPD convictions that seek anything other than damages because it is unclear what other relief
Plaintiff seeks and any claims made pursuant to the First or Eighth Amendments as there are
insufficient allegations supporting such claims.FN4
FN4. I note that Defendants make a number of other arguments supporting dismissal including,
inter alia, qualified immunity. However, as I conclude that dismissal of the entire complaint is
appropriate on the grounds articulated, I need not address Defendants' other arguments.
2. Plaintiff's Motions for Preliminary Injunctions
*7 Plaintiff has filed four motions for preliminary or permanent injunctions (Docket Nos.
31, 61, 70, 75). A preliminary injunction is an “extraordinary remedy”, and, therefore, “the right
to relief must be clear and unequivocal.” Nova Health Sys. v. Edmondson, 460 F.3d 1295, (10th
Cir.2006) (internal quotation marks omitted) (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936
F.2d 1096, 1098 (10th Cir.1991)). The decision to grant injunctive relief is a matter of discretion.
See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007) (noting that
the Tenth Circuit reviews denials of preliminary injunctions for abuse of discretion). “To obtain
a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the
merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury
outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the
injunction, if issued, will not adversely affect the public interest.” Gen. Motors Corp., 500 F.3d
at 1226 (citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)).
Additionally, if the movant can establish that the latter three requirements “tip strongly in his
favor, the test is modified, and the [movant] may meet the requirement for showing success on
the merits by showing that questions going to the merits are so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”
Flowers, 321 F.3d at 1256 ( quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002)).
In this case, Magistrate Judge Tafoya determined that because she recommended that all
of Plaintiff's claims be dismissed, Plaintiff was unable to meet the first factor for a preliminary
injunction—substantial likelihood of success on the merits. Although I conclude that dismissal is

warranted on different grounds than those upon which Magistrate Judge Tafoya based her
recommendation, the analysis of Plaintiff's showing of the likelihood of success remains the
same. I further note that Plaintiff has not demonstrated that the other three requirements “tip
strongly in his favor” such that the “success on the merits” prong showing is reduced. Id.
Therefore, I agree with Magistrate Judge Tafoya that denial of Plaintiff's motions for preliminary
injunction is appropriate.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Tafoya issued August 21, 2008 (Docket No. 80) is
accepted as modified.
2. Defendants' Motion to Dismiss (Docket No. 24) is granted.
3. Plaintiff's Motions for Preliminary Injunction (Docket Nos. 31, 61, 70, 75) are denied.
4. This case is dismissed with prejudice.
D.Colo.,2008.
Doyle v. Cella
Not Reported in F.Supp.2d, 2008 WL 4490111 (D.Colo.)

United States Court of Appeals,
Tenth Circuit.
Bilal RASHAD, Plaintiff–Appellant,
v.
Pete DOUGHTY, Medical Services Administrator, Oklahoma Department of Corrections; Judy
Owens, Administrator, Medical Services, Lexington Correctional Complex, Defendants–
Appellees.
No. 00–6088.
Jan. 29, 2001.
Prisoner brought action against two corrections officials, alleging that the Oklahoma Department
of Corrections failed to provide adequate treatment of his post-traumatic stress disorder. The
United States District Court dismissed complaint, and prisoner appealed. The Court of Appeals,
Henry, Circuit Judge, held that: (1) prisoner failed to state an ADA claim, absent allegations that
corrections officials discriminated against him on the basis of his disorder, and (2) prison
officials' failure to provide prisoner with treatment at the facility of his choice was insufficient to
state an Eighth Amendment claim.
Affirmed.
*560 Before BALDOCK, HENRY, and LUCERO, Circuit Judges.FN*
FN* After examining the briefs and appellate record, this panel has determined unanimously that
oral argument would not materially assist the determination of this appeal. See Fed.R.App.P.
34(a)(2); 10th Cir.R. 34.1(G). Therefore, appellant's request for oral argument is denied, and the
case is ordered submitted without oral argument.
ORDER AND JUDGMENT FN**
FN** This order and judgment is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and conditions of
10th Cir.R. 36.3.
HENRY, Circuit Judge.
**1 Bilal Rashad, a prisoner in the custody of the Oklahoma Department of Corrections, filed
this pro se action against two corrections officials, alleging that the Department failed to provide
adequate treatment of his post-traumatic stress disorder. According to Mr. Rashad, this failure to
provide treatment violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101–
12213 and the Eighth Amendment. He sought an injunction directing the defendants to provide
the requested treatment.
In a thorough and well-reasoned report and recommendation, the magistrate judge
concluded that Mr. Rashad's complaint failed to state a claim upon which relief could be granted.
He further recommended that the dismissal count as a “prior occasion” under 28 U.S.C. §
1915(g). The district court agreed and dismissed Mr. Rashad's complaint. Upon de novo review,

see Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir.1999), we agree with the
magistrate judge and the district court.
With regard to Mr. Rashad's ADA claim, it is clear that prisons are “public entities” covered by
Title II of the ADA. See Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 209, 118
S.Ct. 1952, 141 L.Ed.2d 215 (1998). However, contrary to Mr. Rashad's assertions, the failure to
provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment
concerns in certain circumstances, does not constitute an ADA violation. See Bryant v. Madigan,
84 F.3d 246, 249 (7th Cir.1996) (concluding that the ADA “would not be violated by a prison's
simply failing to attend to the medical needs of its disabled prisoners” and that the statute “does
not create a remedy for medical malpractice”); McNally v. Prison Health Servs., 46 F.Supp.2d
49, 58 (D.Me.1999) (distinguishing between “claims that the medical treatment received for a
disability was inadequate from claims that a prisoner has been denied access to services or
programs because he is disabled,” and concluding that only the latter class of claims states an
ADA violation). In contrast, the allegation that a disabled prisoner has been denied services that
have been provided to other prisoners may state an ADA claim. See, e.g., McNally, 46
F.Supp.2d at 58 (concluding that an HIV patient's claim of discriminatory denial of prescription
services provided to general prison population would state an ADA claim).
Here, as the magistrate judge noted, Mr. Rashad's complaint alleges inadequate treatment
of his post-traumatic stress disorder but does not allege that the defendant corrections officials
discriminated against him on the basis of that disorder. We therefore agree that Mr. Rashad has
failed to state an ADA claim.
As to Mr. Rashad's second claim, the magistrate judge properly noted that *561 the
Eighth Amendment protects prisoners from officials' deliberate indifference to serious medical
needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Eighth
Amendment claims have two elements: “an objective component requiring that the pain or
deprivation be sufficiently serious; and a subjective component requiring that the offending
officials act with a sufficiently culpable state of mind.” Mitchell v. Maynard, 80 F.3d 1433, 1444
(10th Cir.1996) (internal quotation marks omitted). The objective component requires an
“extreme deprivation” denying a “minimal civilized measure of life's necessities.” Hudson v.
McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks
omitted). As to the subjective component, in order to be held liable, the defendant official must
act with deliberate indifference to the prisoner's health or safety. See Farmer v. Brennan, 511
U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
**2 “ ‘A complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment.’ ” Green v. Branson, 108 F.3d 1296, 1303 (10th Cir.1997) (quoting Estelle, 429
U.S. at 106, 97 S.Ct. 285). However, delays in providing treatment may violate the Eighth
Amendment— “ ‘if there has been deliberate indifference which results in substantial harm.’ ”
Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993) (quoting Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir.1993)). “Delays in providing medical care that courts have found to violate the
Eighth Amendment have frequently involved life-threatening situations and instances in which it

is apparent that delay would exacerbate the prisoner's medical problems.” Hunt. v. Uphoff, 199
F.3d 1220, 1224 (10th Cir.1999).
We agree with the magistrate judge's assessment of Mr. Rashad's Eighth Amendment
claim. Although he alleges that prison officials refused to grant his request for treatment at a
Veterans Administration facility, Mr. Rashad acknowledges that mental health professionals are
available to provide him with treatment within the Department of Corrections. The fact that Mr.
Rashad has not been provided with treatment at the facility of his choice is insufficient to state an
Eighth Amendment claim.
In his appellate brief, Mr. Rashad contends that the magistrate judge and the district court
erred in failing to allow him to amend his complaint and to conduct additional discovery.
Although we construe pro se pleadings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991), we need not allow the amendment of pleadings and the conducting of discovery when
the plaintiff has failed to assert specific facts to support his claims. See Northington v. Jackson,
973 F.2d 1518, 1520–21 (10th Cir.1992). Here, there is no indication that further proceedings
would reveal valid claims against the defendants.
III. CONCLUSION
Accordingly, we AFFIRM the district court's dismissal of Mr. Rashad's complaint. The district
court's dismissal counts as a “prior occasion” for the counting purposes of 28 U.S.C. § 1915(g).
See Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 780 (10th
Cir.1999).
C.A.10 (Okla.),2001.
Rashad v. Doughty
4 Fed.Appx. 558, 2001 WL 68708 (C.A.10 (Okla.)), 2001 CJ C.A.R. 698

United States Court of Appeals,
Seventh Circuit.
Darren D'Wayne MORRIS, Plaintiff–Appellant,
v.
Phillip A. KINGSTON, et al., Defendants–Appellees.
No. 09–3326.
Submitted March 3, 2010.FN*
FN* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R.App. P.
34(a)(2)(C).
Decided March 10, 2010.
Background: Prison inmate sued prison officials, seeking to recover for officials' delay in
responding to his request that they take steps to accommodate his hearing impairment while he
was in solitary confinement, with result that he missed meals, showers, and recreation time
because he could not hear audio alert that was played over prison intercom. The United States
District Court for the Eastern District of Wisconsin granted defendants' motion for summary
judgment, and inmate appealed.
Holdings: The Court of Appeals held that:
(1) inmate failed to show that his missing meals or medicine had caused him any serious harm or
lasting detriment, as required to support Eighth Amendment claim;
(2) inmate's request for injunctive relief was rendered moot by his transfer to another facility;
and
(3) officials' delay was at worst negligent, and did not rise to level of any intentional
discrimination against inmate based on his disability, as required to support damages award
under the Americans with Disabilities Act (ADA).
Affirmed.
ORDER
**1 Darren D'Wayne Morris sued a number of prison officials, claiming that he missed
meals, showers, and recreation time because his hearing disability prevented him from
complying with prison rules. The district court granted summary judgment for the defendants.
We affirm.
*688 The facts are uncontested. Morris is a Wisconsin prisoner who was housed in the
segregation unit at the Waupun Correctional Institution in August 2006. (He was transferred to
Columbia Correctional Institution in October 2006.) Prisoners in segregation at Waupun were
alerted to receive their meals, showers, and other essentials by an audio tone sounded over the
intercom. If a prisoner did not stand at his cell door when the tone sounded, prison officials
assumed that he was refusing the meal or shower. Because Morris suffered from hearing loss in
both ears, and at the time had only one functional hearing aid, he could not always hear the tone;

he says he missed out on 17 meals between August 4 and August 27. He also sometimes missed
showers and recreation, and on eight occasions was not given his medication. (Morris took three
prescriptions to treat depression, psychosis, and a fungal infection on his foot.) Morris alerted
prison officials numerous times that he had a hearing impairment, requesting a placard for his
door so that he would not miss meals or medication. A placard was placed on his door on August
21, though he continued to miss a few meals after that date.
Morris sued for damages and injunctive relief under the Eighth and Fourteenth
Amendments and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131–12134. He
claimed that the defendants knew about his disability but deliberately disregarded his needs by
passing him over for meals and medication. Morris also claimed that the prison's policy requiring
him to respond to an audio cue in order to get essential needs violated the ADA, which prohibits
discrimination in the provision of public services. 42 U.S.C. § 12132; Wis. Cmty. Servs., Inc. v.
City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006). He sought damages under the ADA for
deprivation of food and medicine, and injunctive relief requiring Waupun to redesign lunchroom
facilities to ensure that those with hearing disabilities would be safe even though they could not
respond to an audible alarm.
The district court granted summary judgment to the defendants. The court concluded that
missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the
Eighth Amendment. Moreover, the court concluded that Morris had not established that the
defendants were deliberately indifferent to his needs for food and medicine, and that the prison
officials were at most negligent. As for the ADA claims, the court concluded that his request for
injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an
Eighth Amendment claim doomed his request for damages, which are available under Title II
only for constitutional violations.
**2 On appeal, Morris contends that the district court improperly granted summary judgment for
the defendants. He maintains that a genuine issue exists concerning how seriously he was
affected by missing food and medicine. He also contends that his request for injunctive relief was
not moot because, as a prisoner serving a life sentence, he is likely to be transferred back to
Waupun at some later point.
The Eighth Amendment requires prison officials to provide adequate food, clothing,
shelter, and medical care to prisoners. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994); Sain v. Wood, 512 F.3d 886, 893 (7th Cir.2008). To establish an Eighth
Amendment violation, a prisoner must show that he has been severely harmed and that prison
officials were deliberately indifferent to that harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970;
Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.2006). This requires that prison officials knew
about a substantial risk of *689 harm to the inmate and refused to act to prevent that harm.
Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008).
Mere negligence—even gross negligence—does not violate the Constitution. Lee v. Young, 533
F.3d 505, 509 (7th Cir.2008).
Morris argues that his weight loss while in segregation belies the district court's
conclusion that he suffered no serious harm. But as the district court noted, he was examined five

times by medical staff during his 24–day stay in segregation, and the staff noted no serious
medical problem related to weight loss or otherwise caused by missing food or medicine.
Whether or not the 17–day delay in placing the placard outside his cell suggests a failure to
provide adequate care, Morris cannot establish a constitutional violation because he has not
shown that missing his meals or medicine caused serious harm or lasting detriment. See Freeman
v. Berge, 441 F.3d 543, 547 (7th Cir.2006) (concluding that even a 45–pound weight loss would
not support a claim without evidence of serious suffering or lasting harm); Smith v. Carpenter,
316 F.3d 178, 187 (2d Cir.2003) (upholding jury's finding that missing one week of HIV
medication did not cause serious injury); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 811–12
(7th Cir.2000) (concluding that missing some doses of medicine was not a constitutional
violation without showing of serious harm).
As for his ADA claims, although Morris correctly notes that Title II applies to prisoners,
see Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998);
Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000), the district court correctly rejected his
request for injunctive relief. “[W]hen a prisoner who seeks injunctive relief for a condition
specific to a particular prison is transferred out of that prison, the need for relief, and hence the
prisoner's claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.2004); see also
Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996). Morris was transferred to Columbia in
October 2006, and he needed to provide more than just his conjecture of a possible return to
Waupun to stave off dismissal for mootness. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct.
2330, 45 L.Ed.2d 272 (1975); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.1988).
**3 But his claim for damages based on past conduct is not mooted by his transfer. Ortiz v.
Downey, 561 F.3d 664, 668 (7th Cir.2009). The district court correctly recognized that Title II
creates a private cause of action for damages against states for conduct that violates the
Fourteenth Amendment, and so Title II abrogates state sovereign immunity at least for those
claims that independently violate the Constitution. United States v. Georgia, 546 U.S. 151, 159,
126 S.Ct. 877, 163 L.Ed.2d 650 (2006); Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 874 (7th
Cir.2006). As the district court properly stated, though, Morris's inability to establish an Eighth
Amendment claim forecloses this avenue for relief.
But the district court did not note that in Georgia the Court left open the question whether
the ADA could validly abrogate sovereign immunity for non-constitutional violations. 546 U.S.
at 159, 126 S.Ct. 877. In reserving this question, the Court instructed lower courts to determine
in the first instance, claim by claim, whether Congress's purported abrogation of sovereign
immunity is valid when the challenged conduct violates the ADA but not the Constitution.
Georgia, 546 U.S. at 159, 126 S.Ct. 877.
But Title II only provides for damages if a public official intentionally discriminates
because of disability. See *690 Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d
267, 278 (7th Cir.2007); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002); Delano–Pyle v.
Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002). And Morris has not shown that any
discrimination he suffered was intentional. Prison officials initially subjected him to their policy
requiring prisoners in segregation to respond to an audio cue. But Morris's complaints about not
being able to hear the audio cue were heeded by the prison administrators, who placed a placard

outside his cell to alert guards that he had a hearing disability, and the administrators followed up
by sending the guards a memorandum regarding his condition. The fix was simple, low-cost,
low-tech, and effective to boot—within days Morris stopped missing meals. One wonders why
then it took seventeen days to implement. Prison officials' initial failure to accommodate Morris's
disability might at worst constitute negligence, but negligence alone cannot support a Title II
claim. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) (concluding that
bureaucratic negligence would not establish intentional discrimination). Because Morris
presented no evidence to support a damages claim under the ADA for intentional discrimination,
we need not reach the question whether the ADA validly abrogates Wisconsin's sovereign
immunity.
AFFIRMED.
C.A.7 (Wis.),2010.
Morris v. Kingston
368 Fed.Appx. 686, 2009 WL 6038161 (C.A.7 (Wis.)), 40 NDLR P 247