Brooks v. Oba et al

Filing 94

ORDER granting in part and denying in part 73 Motion to Dismiss. The CDOC Defendants' Motion to Dismiss is GRANTED as to Defendant Montoya and Defendant Creany. The claims against these defendants are dismissed in their entirety. As explained in the opinion, the Motion is GRANTED in part as to Defendant Tessier. The Motion to Dismiss is DENIED as to Defendant Russell and Defendant Howell. By Magistrate Judge Craig B. Shaffer on 07/01/2015.(cbslc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02894-CBS
JASON BROOKS,
Plaintiff,
v.
DAVID OBA,
PATRICK BLAKE,
ANGIE TURNER,
CORRECTIONS CORPORATION OF AMERICA,
DEBRA FOSTER,
JULIE RUSSELL,
KATHY HOWELL,
TIM CREANY,
DAVID TESSIERE,
DOLORES MONTOYA, and
TRUDY SICOTTE
Defendants.

ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

Magistrate Judge Shaffer
This matter comes before the court on a Motion to Dismiss (Doc. 73) filed on February 2,
2015, by Defendants Julie Russell, Kathy Howell, Tim Creany, David Tessier1, and Dolores
Montoya (collectively “CDOC Defendants”). Pursuant to the Order of Reference dated July 1,
2014, this civil action was referred to the Magistrate Judge “for all purposes” pursuant to the
Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate

1

Defendant David Tessier’s name has been spelled in a variety of ways throughout the pleadings
and other filings. The court bases the spelling of his name on the Waiver of Service filed on his behalf.
(Doc. 19).

1

Judges and Title 28 U.S.C. § 636(c). (See Doc. 44). This court has carefully considered the
motions and related briefing, the entire case file, and applicable case law. For the following
reasons, the court grants the Motion to Dismiss in part, and denies it in part.
FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND
The court incorporates the statement of facts and the procedural background from its
order (Doc. 59) granting the CDOC Defendants’ previous Motion to Dismiss (Doc. 36). In
summary, Plaintiff, a pro se prisoner incarcerated in the Fremont Correctional Facility (“FCF”),
alleges that he suffers from chronic ulcerative colitis, which causes inflammation and ulceration
of the large intestine. He endures symptoms ranging from weight loss and dehydration to
intestinal bleeding, rectal bleeding, severe abdominal pain, and muscle atrophy, and is plagued
by the persistent need to use the restroom, which can result in his taking up to thirty bathroom
trips a day.

(See Doc. 59 at 2-3). Plaintiff believes his condition can be managed with

“appropriate medications, dietary supplementation, and exercise.” (Doc. 68 at ¶ 22).
On December 26, 2013, Plaintiff filed a 72-page amended complaint (Doc. 11), asserting
thirteen claims for relief, two of which were dismissed as frivolous. (See Doc. 14). He claimed
that the CDOC Defendants violated his Eighth Amendment right to be free from cruel and
unusual punishment because they refused to (1) provide him with a gluten-free diet2 and Ensure,
a dietary supplement; (2) authorize special meal passes, exercise passes, and additional toilet
paper; or (3) transfer him to a facility better equipped to manage his condition. (Doc. 11 at 5658). He also claimed that Defendant Creany was deliberately indifferent to Plaintiff’s serious
medical needs in violation of the Eighth Amendment. Id. at 58-59.

2

Plaintiff alleges that he has “a genetic predisposition to gluten intolerance and sensitivity” and
that gluten exacerbates his ulcerative colitis. (See Doc. 68 at ¶¶ 49, 116, 123).

2

Thereafter, the CDOC Defendants3 filed a Motion to Dismiss the Amended Complaint in
part.4 (Doc. 36). On October 17, 2014, the court granted the motion to dismiss (“previous
order”), but gave Plaintiff leave to amend his Eighth Amendment claims. Specifically, Plaintiff
was permitted to amend his medical claim against Defendant Tessier and his conditions of
confinement claim as related to his request for special meal passes. 5 (See Doc. 59).
On December 15, 2014, Plaintiff filed his Second Amended Prisoner Complaint (“SAC”)
for Money Damages, Declaratory and Injunctive Relief (Docs. 68 and 68-1). In the SAC,
Plaintiff again claims that the CDOC Defendants as well as Defendants Patrick Blake, David
Oba, Angie Turner, and Corrections Corporation of America (“CCA”) (collectively “CCA
Defendants”) violated his Eighth Amendment right against cruel and unusual punishment.6 The
allegations in the SAC, in large part, mirror those in the amended complaint. The SAC also
included new allegations regarding Defendant Tessier’s and Defendant Sicotte’s7 actions.
Specifically, Plaintiff alleges that — following a prescription from Dr. Vahil — Defendant
Tessier (and Defendant Sicotte) “dismiss[ed] the doctor’s orders, [and denied] the plaintiff
access to the FCF’s prescription medication program.” (Doc. 68-1 at 15). Plaintiff’s new
complaint also includes allegations that, although his symptoms could be managed with
appropriate medications, supplements, and exercise, he has not actually been able to do so. (Doc.
3

The CDOC Defendants previously included the Colorado Department of Corrections, Paul
Cline, Lou Archuletta, Rick Raemisch, and Ron Wager. These Defendants have been dismissed from the
action. (Doc. 59).
4
The CDOC defendants did not move for dismissal of the claim against Defendant Creany in
their original motion. However, Defendant Creany has moved to dismiss the claims against him in the
present motion.
5
Plaintiff was not given leave to amend his First Amendment, Fourteenth Amendment, or
Americans with Disabilities Act claims. In his Second Amended Complaint, Plaintiff includes factual
allegations relevant to those claims; however, they remain dismissed.
6
The CCA Defendants filed an answer (Doc. 69) to the SAC and are not subject to this order.
Therefore, the CDOC Defendants will be referred to as “Defendants.”
7
Defendant Trudy Sicotte was added to this action through the Second Amended Complaint. She
filed her Answer and Jury Demand on June 22, 2015 (Doc. 93), and is not subject to this order.

3

68-1 at ¶ 224). He further alleges that his symptoms are always “inflamed,” which effects his
ability to attend meals at the regularly scheduled times. Id.
On February 2, 2015, Defendants filed a Motion to Dismiss the Second Amended
Complaint (Doc. 73). They contend that Plaintiff has failed to allege personal participation on
behalf of Defendants Howell, Russell, Montoya, and Tessier. In addition they argue that they are
entitled to qualified immunity because Plaintiff has failed to state any claims under the Eighth
Amendment. Plaintiff filed his response on March 12, 2015 (Doc. 77), and Defendants filed a
reply on April 6, 2015. (Doc. 80).
STANDARD OF REVIEW
A.

Fed. R. Civ. P. 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a

complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.
12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all wellpleaded factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, “bound to
accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In addition, this court may consider exhibits attached to the complaint without converting
the motion into one for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d
1106, 1112 (10th Cir. 1991).

4

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. A claim is plausible
when the plaintiff “pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the
sheer possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent”
with a defendant’s liability are insufficient. Id. “[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 actions 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). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges
facts supporting all the elements necessary to establish an entitlement to relief under the legal
theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Because Mr. Brooks is not an attorney, his pleadings and other papers have been
construed liberally and held to a less stringent standard than formal pleadings drafted by a
lawyer. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404
U.S. 519, 520-21 (19972)). Therefore, “if the court can reasonably read the pleadings to state a
claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to cite
proper authority, his confusion of legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Id. However, this court cannot act as a pro se
litigant’s advocate. Id. It is the responsibility of the pro se plaintiff to provide a simple and
concise statement of his claims and the specific conduct that gives rise to each asserted claim.
See Willis v. MCI Telecomms., 3 F. Supp. 2d 673, 675 (E.D.N.C. 1998). This court may not
“supply additional factual allegations to round out a plaintiff’s complaint.” Whitney v. State of

5

New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff defeat a motion to
dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not
been plead. Associated General Contractors of California Inc. v. California State Council of
Carpenters, 459 U.S. 519, 526 (1983).
B. Qualified Immunity
Each of the Defendants has raised the qualified immunity defense as to the claims
asserted against them. Qualified immunity shields “government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quotation omitted). Qualified immunity is “immunity from suit rather than a mere
defense to liability [and] it is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Whether defendants are entitled to qualified
immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
In resolving a motion to dismiss based on qualified immunity, this court must consider
“whether the facts that a plaintiff has alleged . . . make out a violation of a constitutional right,”
and “whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.” Pearson, 555 U.S. at 232. The plaintiff bears the burden of showing, with
particularity, facts and law establishing the inference that the defendant violated a clearly
established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th
Cir. 1994). If the plaintiff fails to satisfy either prong, the defendant is entitled to qualified
immunity. Pearson, 555 U.S. at 236. The court has the discretion to consider these prongs in any
order it chooses. Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir. 2011).

6

As to the first prong, “[i]f no constitutional right would have been violated were the
allegations established,” the inquiry is at an end. Saucier v. Katz, 533 U.S. 194, 201 (2001). The
second prong — whether the right was clearly established — must be considered “in light of the
specific context of the case, not as a broad general proposition.” Id. An official’s conduct
“violates clearly established law when, at the time of the challenged conduct, ‘the contours of a
right are sufficiently clear’ that every ‘reasonable official would have understood that what he is
doing is violating that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). To be clearly established, “existing precedent
must have placed the statutory or constitutional question beyond debate.” Id.
ANALYSIS
In the SAC, Plaintiff claims that he has suffered cruel and unusual punishment at FCF
because (1) Defendant Creany was deliberately indifferent to Plaintiff’s serious medical needs;
(2) Defendant Tessier failed to authorize an adequate gluten-free diet; and (3) Defendants
Montoya, Howell, Russell, and Tessier failed to authorize special meal passes.
Title 42 U.S.C. § 1983 allows an injured person to seek damages for the violation of his
or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see
also West v. Atkins, 487 U.S. 42, 48 (1988). “[T]he treatment a prisoner receives in prison and
the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). “The Eighth Amendment’s
prohibition of cruel and unusual punishment imposes a duty on prison officials to provide
humane conditions of confinement, including adequate food, clothing, shelter, sanitation,
medical care, and reasonable safety from bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916
(10th Cir. 2008) (citation omitted). The Eighth Amendment also prohibits “unnecessary and

7

wanton infliction of pain,” including “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials may be liable for an
Eighth Amendment violation for “indifference…manifested…in their response to the prisoner's
needs or by…intentionally denying or delaying access to medical care or intentionally interfering
with treatment once prescribed.” Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014).
“The test for constitutional liability of prison officials involves both an objective and a
subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotations and
citation omitted). First, the prisoner must “produce objective evidence that the deprivation at
issue was in fact ‘sufficiently serious.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). “[A] medical need is sufficiently serious if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” Mata, 427 F.3d at 751 (holding that even a
physician’s grossly negligent medical judgment is not subject to scrutiny if the prisoner’s need
for medical treatment was not obvious) (internal quotations and citation omitted). Furthermore,
a delay in medical care “only constitutes an Eighth Amendment violation where the plaintiff can
show the delay resulted in substantial harm.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th
Cir. 2001) (quotations and citation omitted). The substantial harm requirement “may be satisfied
by lifelong handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946,
950 (10th Cir. 2001) (citation omitted).
Second, under the subjective component, the prisoner must establish deliberate
indifference to his serious medical needs by “present[ing] evidence of the prison official's
culpable state of mind.”

Mata, 427 F.3d at 751. “Deliberate indifference to serious medical

needs of prisoners constitutes unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at

8

104 (internal quotation and citation omitted). The Tenth Circuit recognizes two types of conduct
constituting deliberate indifference.

The first occurs when a medical professional fails to

properly treat a serious medical condition. Under this type of deliberate indifference, an assertion
of mere negligence or even medical malpractice does not give rise to a constitutional violation.
Perkins v. Kansas Dept. of Corr., 165 F.3d 803, 811 (10th Cir. 1999). Further, a prisoner’s
disagreement with medical personnel over the course of his treatment does not make out a cause
of action. Id.
The second type of deliberate indifference occurs when a prison official prevents an
inmate from receiving treatment or denies him access to medical personnel capable of providing
treatment. See Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (internal citations
omitted). A prison health official who serves “‘solely…as a gatekeeper for other medical
personnel capable of treating the condition’ may be held liable under the deliberate indifference
standard if she ‘delays or refuses to fulfill the gatekeeper role.’” Mata, 427 F.3d at 751 (quoting
Sealock, 218 F.3d at 1211. The subjective standard requires a state of mind “akin to recklessness
in the criminal law, where, to act recklessly, a person must consciously disregard a substantial
risk of serious harm.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511
U.S. at 837) (internal quotations and further citation omitted). “‘[A]n inadvertent failure to
provide adequate medical care’ does not rise to a constitutional violation.” Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Estelle, 429 U.S. at 105–06). The plaintiff must
allege that defendants personally participated in the Eighth Amendment violation. See Jenkins v.
Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976)). “Whether a prison official had the requisite knowledge of a substantial risk is a

9

question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence.” Self, 439 F.3d at 1231 (internal quotations omitted).
In their Motion to Dismiss, Defendants argue that Plaintiff has failed to allege personal
participation on the part of Defendants Howell, Russell, Montoya, and Tessier, and that he has
failed to state a claim for relief under the Eighth Amendment. (See Doc. 73 at 5-9, 10-19). At this
stage in the litigation the court must “accept as true all well-pleaded factual allegations” and
view those allegations “in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595
F.3d 1120, 1124 (10th Cir. 2010).
A.

Personal Participation of Defendant Montoya

In the SAC, Plaintiff contends that his Eighth Amendment right was violated because
Defendant Montoya failed to provide him with a special meal pass.8 Careful review of the
allegations in the SAC demonstrates that Plaintiff has failed to sufficiently allege personal
participation on behalf of Defendant Montoya.
Personal participation is an essential allegation in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To maintain a Section 1983 action, the
plaintiff must allege facts showing that the defendant was “personally involved in the decisions
leading to [the plaintiff’s] mistreatment.” Escobar v. Reid, 668 F.Supp.2d 1260, 1290 (D.Colo.
2009). A plaintiff must establish an affirmative link between the alleged constitutional violation
and each Defendant’s participation, control, or direction. Serna v. Colorado Dept. of Corr., 455
F.3d 1146, 1152-53 (10th Cir. 2006).

8

The SAC also includes allegations relevant to Defendant Montoya’s alleged refusal to provide
Plaintiff with additional toilet paper. Plaintiff’s claim regarding the provision of toilet paper has been
dismissed and, therefore, these allegations are irrelevant to the remaining claim against Defendant
Montoya.

10

Here, the SAC contains few allegations regarding the specific actions of Defendant
Montoya.9 Plaintiff alleges that on March 5, 2012, his mother spoke with Defendant Montoya
regarding Plaintiff’s medical problems. (Doc. 68 at ¶ 146). In response to this conversation,
Defendant Montoya issued Plaintiff a medical pass that would allow him to attend meals outside
of regularly scheduled meal times. Id. On June 5, 2012, Plaintiff requested that Defendant
Montoya renew the special meal pass. Plaintiff alleges, without more, that “no reasonable
response [was] given.” However, it is unclear whether “no reasonable response” means that
Defendant Montoya denied Plaintiff’s request, or whether she did not respond at all. Denuded of
any supporting facts, such a statement is conclusory and insufficient to demonstrate any personal
involvement on the part of Defendant Montoya in Plaintiff’s alleged mistreatment. Furthermore,
to the extent that Plaintiff did not receive a response from Defendant Montoya, it is apparently
because she retired. Id. at ¶ 210. Therefore, contrary to Plaintiff’s contentions, his allegations
establish that Defendant Montoya did, in fact, attempt to accommodate his illness, and the only
reason she did not renew Plaintiff’s meal pass was due to her retirement.
Consequently, Plaintiff has failed to allege personal participation on the part of
Defendant Montoya; the court, therefore, concludes that Plaintiff’s claim against her should be
dismissed.
B.

Medical Treatment by Doctor Creany

Plaintiff contends that Dr. Creany was deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment because he (1) failed to have Plaintiff’s gluten-free

9

There are several allegations wherein Plaintiff refers to Defendant Montoya as part of a group of
offending Defendants. (See Doc. 68 at ¶ 139 and Doc. 68-1 at ¶¶ 186, 223). However, he provides no
details as to Defendant Montoya’s specific actions. The pleading standards require more. See Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (a claimant must explain what each
defendant did nto him or her, when the defendant did it, how the defendant’s actions harmed him or her,
and what legal right the plaintiff believes has been violated).

11

diet immediately available upon his transfer to FSF; (2) prescribed medications that were
“known to cause immune-suppression (worsening) of [Plaintiff’s] symptoms;” (3) failed to
provide nutritional supplements or pain medications as prescribed by Defendant Oba; and (4)
allowed Plaintiff to discontinue his medical diet. After a thorough review of Plaintiff’s
allegations, the court concludes that he has failed to satisfy the deliberate indifference inquiry.
1. Delay in Gluten-Free Diet
In the SAC, Plaintiff alleges that — following his transfer to FCF — his gluten free diet
was delayed for eight days. He contends that Dr. Creany violated the Eighth Amendment
because he failed to ensure that “[Plaintiff’s] prescribed medical diet was immediately provided
when he arrived at the FCF.” (Doc. 68-1 at 25). For two reasons, the court concludes that
Plaintiff has failed to allege a violation of the Eighth Amendment.
First, there are no allegations in the SAC that Dr. Creany had any advance knowledge of
Plaintiff’s transfer to FCF. Nor are there any allegations that Dr. Creany knew, prior to his
arrival, that Plaintiff’s medical condition necessitated a gluten-free diet. Consequently, the SAC
fails to allege that Dr. Creany knew of a substantial risk to Plaintiff’s heath or that he disregarded
such a risk. See Farmerv. Brennan, 511 U.S. 825, 847 (1994) (“[A] prison official may be held
liable under the Eighth Amendment . . . only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate it.”).
Second, to the extent that Plaintiff relies on the five-day delay — between his first
appointment with Dr. Creany on February 17, 201210, and the provision of a gluten-free diet on
February 22, 2012 — Plaintiff has failed to allege any substantial harm resulting from such a
delay. “When the basis for a prisoner’s Eighth Amendment claim is a temporary delay or
10

Plaintiff alleges that he thoroughly explained his need for a “medical diet” to Dr. Creany. (Doc.
68 at ¶ 131).

12

interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus
on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical
condition alone” in determining whether the alleged deprivation was sufficiently serious. Smith,
316 F.3d at 185. A delay or interruption in medical care “only constitutes an Eighth Amendment
violation where the plaintiff can show that the delay resulted in substantial harm.” Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2007).
Accordingly, the issue here is whether the five-day delay in Plaintiff’s gluten-free diet
resulted in substantial harm. Sealock, 218 F.3d at 1210; see also Graham v. Wright, 2004 WL
1794503 (S.D.N.Y. Aug. 10, 2004) (In case where prisoner complained of delay in providing
treatment for Hepatitis C, the court held that the objective element of deliberate indifference
standard must be satisfied by “harm that resulted from the delay.”). A close reading of Plaintiff’s
complaint shows that he has not sufficiently alleged any injury that would constitute substantial
harm. Here, Plaintiff alleges only that, as a result of the delay, his condition went into “crisis” for
more than three months. Plaintiff has failed to provide any supporting factual allegations
explaining what the “crisis” entailed; therefore, the court concludes that the Plaintiff has failed to
nudge his claim “across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (2009)
(citing Twombly, 550 U.S. at 570)).
2. Prescriptions
Plaintiff also contends that Dr. Creany violated the Eighth Amendment when he
prescribed Plaintiff Prednisone, and when he failed to prescribe supplements and pain
medications that were previously prescribed by Defendant Oba. A review of the SAC
demonstrates that Plaintiff has strong opinions as to the precise way his medical condition should
be treated. However, factual allegations showing a mere difference of opinion as to the proper

13

course of treatment do not state a constitutional violation. Perkins, 165 F.3d at 811. “[A] prison
doctor remains free to exercise his or her independent professional judgment and an inmate is not
entitled to any particular course of treatment.” Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th
Cir. 1997).
Here, the SAC clearly alleges that — contrary to Plaintiff’s contention of deliberate
indifference — Dr. Creany was treating Plaintiff’s ulcerative colitis, and attempted to
accommodate Plaintiff’s various requests for gluten-free diets and nutritional supplements.11
Indeed, Plaintiff alleges little more than a difference of opinion as to the proper course of
treatment. At most, Plaintiff’s disagreement amounts to an allegation of medical malpractice,
which is not actionable under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“Medical
malpractice does not become a constitutional violation merely because the victim is a prisoner.”).
Consequently, Plaintiff has not alleged that Dr. Creany acted with a culpable state of mind and
these claims must be dismissed.
3. Discontinuation of Diet
Finally, Plaintiff contends that Dr. Creany was deliberately indifferent in violation of the
Eighth Amendment because he allowed Plaintiff to discontinue his gluten-free diet. The precise
contours of this contention are unclear and Plaintiff’s argument could be interpreted in two ways.
Plaintiff could be faulting Dr. Creany for (1) failing to ensure that Plaintiff was provided with a
calorically-sufficient, gluten-free meal; or (2) failing to intervene when Plaintiff voluntarily
discontinued his gluten-free diet. Under either permutation, however, the court concludes that
Plaintiff has failed to state a claim for relief.

11

Furthermore, according to Plaintiff’s own allegations, it was Defendant Tessier who prevented
Dr. Creany from ordering the nutritional supplements. (Doc. 68-1 at ¶ 213).

14

According to the SAC, in April 2013, the CDOC’s gluten-free diet became calorically
insufficient.12 When Plaintiff complained about the new diet, Dr. Creany referred Plaintiff to a
dietician who, in turn, recommended a more specialized gluten-free diet for Plaintiff. (Doc. 68-1
at ¶¶ 199-200). The dietician also allegedly recommended that Plaintiff’s meals be supplemented
with Ensure if the meals and snacks, alone, were not enough to stabilize his weight. Id. at ¶ 200.
Plaintiff contends that, even on this modified diet, he continued to lose weight and, therefore, he
required the Ensure. Based on these allegations, it is evident that Dr. Creany did attempt to
address Plaintiff’s concerns regarding the calorically-deficient, gluten-free diet by referring him
to the dietician. Thus, Plaintiff has failed to allege that Dr. Creany disregarded a risk to
Plaintiff’s health.
Furthermore, a close reading of the SAC demonstrates that Plaintiff’s true complaint is
based on the fact that he did not receive his Ensure. (Doc. 68-1 at ¶ 214). He alleges that the
gluten-free diet, because of its caloric deficiency, must be supplemented with Ensure. Id.
However, according to Plaintiff’s allegations, it was Defendant Tessier who prevented Dr.
Creany from procuring the nutritional supplement for Plaintiff. Id. at ¶ 213. And it was Dr.
Creany who actually advised Plaintiff on how to receive Ensure — by obtaining a prescription
from Dr. Vahil, the gastroenterologist. Id. Consequently, Plaintiff has failed to allege any
deliberate indifference on the part of Dr. Creany.
To the extent that Plaintiff contends Dr. Creany should have intervened when Plaintiff
voluntarily discontinued his gluten-free diet, Plaintiff has failed to state a claim of deliberate
indifference. According to the SAC, in August 2013 — after Plaintiff was informed that he
would need a prescription from a gastroenterologist in order to receive Ensure — Plaintiff chose
12

As the court understands the SAC, Plaintiff alleges that following the change, the CDOCsanctioned, gluten-free diet was comprised mostly of stale tortilla chips. Although this seems improbable,
at this stage of the proceedings, the court accepts this allegation as true.

15

to discontinue his gluten-free diet. (Doc. 68-1 at ¶ 213). However, there are no allegations that
Dr. Creany knew that Plaintiff had voluntarily resumed eating gluten.13 Therefore, Plaintiff has
failed to establish any subjective knowledge on the part of Dr. Creany. Brennan, 511 U.S. at 847
(“[A] prison official may be held liable under the Eighth Amendment . . . only if he knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.”).
For the foregoing reasons, Plaintiff’s claim against Dr. Creany (claim six) must be
dismissed.14
c.

Plaintiff’s Dietary Needs

As discussed above, Plaintiff alleges that the CDOC-sanctioned, gluten-free diet is
calorically insufficient and, therefore, he cannot maintain a healthy weight without supplemental
nutrition in the form of Ensure. And because he has not been provided with Ensure, Plaintiff is
forced to eat glutinous foods, which aggravates his ulcerative colitis and causes him constant
pain and discomfort.

Specifically, Plaintiff’s condition causes him to suffer from internal

bleeding, controlled only by pain medication that weakens his joints; incessant urges to use the
bathroom that prevent him from obtaining regular meals, exercise, and sleep; and severe

13

Moreover, the court is hard-pressed to understand how Dr. Creany can be held accountable for
Plaintiff’s voluntary choice to eat gluten, particularly when Dr. Creany referred Plaintiff to a dietician in
an attempt to have calorically-sufficient, gluten-free meals provided for Plaintiff. Although prison
administrators would have to intervene in certain situations involving an inmate’s eating habits (i.e.,
where a complete refusal to eat turns suicidal or was the result of insanity), see Rodriguez v. Briley, 403
F.3d 952, 953 (7th Cir, 2005), such situations are not present here.
14
Throughout his complaint, Plaintiff also alleges that Dr. Creany refused to provide Plaintiff
with a specialized meal pass. However, in his response to the motion to dismiss, Plaintiff admits that
Defendants Howell, Russell and Tessier were the only defendants with the authority to provide special
meal passes. (Doc. 77 at 8). Thus, to the extent he asserts such a claim, Plaintiff cannot establish any
personal participation on the part of Dr. Creany in the denial of the specialized meal passes. See Butler v.
Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (there must be an affirmative link between the violation
and the defendant’s participation, control or direction, or failure to supervise).

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dehydration. As stated in the court’s previous order (Doc. 59), these allegations establish that
Plaintiff has a sufficiently serious medical need for a specific diet.
In the Amended Complaint (Doc. 11), Plaintiff alleged that he resumed requesting Ensure
in May 2013, but Defendant Tessier allegedly refused to authorize it on the basis that Plaintiff
did not qualify. Id. at 51. The court concluded that this allegation, alone, was insufficient to
demonstrate that Defendant Tessier consciously disregarded a substantial risk to Plaintiff’s
health or abdicated his duty as gatekeeper. (Doc. 59 at 15). The court did note, however, that
certain allegations in Plaintiff’s Motion for Preliminary Injunction (Doc. 49) were relevant to the
subjective component of Plaintiff’s Eighth Amendment claim. Consequently, the court granted
the motion to dismiss, but gave Plaintiff leave to amend his complaint as to the claim against
Defendant Tessier. (Doc. 59 at 16).
In the SAC, Plaintiff alleges that in June 2014, Dr. Vahil, his gastroenterologist,
specifically prescribed Plaintiff a gluten-free diet and one can of Ensure, three times per day.
(Doc. 68-1 at ¶ 216). Plaintiff further alleges that, despite the prescription, Defendants Tessier
and Sicotte denied his Ensure. Id.
In the new Motion to Dismiss (Doc. 73), Defendants contend that Plaintiff has failed to
state a claim of supervisory liability against Defendant Tessier. Id. at 7. Indeed, many of
Plaintiff’s allegations allege that Defendant Tessier “allowed” Defendant Sciotte to discontinue
Plaintiff’s prescription for Ensure. (See Doc. 68-1 at ¶ 216 (“Tessiere [sic] is wantonly,
egregiously, and intentionally allowing defendant Sicotte the authority to override Dr. Vahil’s
standing medical directive”); ¶ 220 (“Defendant Tessiere [sic] allowed . . . defendant Sicotte the
ability to undermine Mr. Frickey’s medical directive, and she takes away the diet and ensure
without excuse”); ¶ 222 (“defendant Tessiere [sic], by and through defendant Sicotte, is

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wantonly, egregiously, and knowingly allowing” the denial of Plaintiff’s Ensure)). And the court
agrees that — to the extent that Plaintiff sought to do so — his allegations do not support a claim
of supervisory liability.15 He has not alleged any facts demonstrating that Defendant Tessier had
the right to control Defendant Sciotte’s actions, nor has he alleged that Defendant Tessier was
specifically aware that Defendant Sciotte was denying Plaintiff’s Ensure. See Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (to establish supervisory liability, a plaintiff
must demonstrate that “(1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation”).
That said, however, Plaintiff does allege that — after Dr. Vahil prescribed the Ensure —
“Defendants Tessiere [sic] and Sciotte dismiss the doctors [sic] orders, denying the plaintiff
access to the FCF’s prescription medication program . . . .” Doc. 68-1 at ¶ 216. Accepting this
allegation true and construing Plaintiff’s pleading liberally and in the light most favorable to
Plaintiff, as it must, the court concludes that — at this stage of the case — Plaintiff has
sufficiently alleged that Defendant Tessier directly denied Plaintiff his Ensure with the
knowledge that it was medically necessary to Plaintiff’s health.
d.

Specialized Meal Passes

Finally, in the SAC, as in the amended complaint, Plaintiff claims that Defendants
Russell, Howell, and Tessier refused to authorize a specialized meal pass so that he could eat
before or after designated times in the event he was too ill to attend meals. (Doc. 68-1 at 22-23).
He also alleges he missed “hundreds of meals” as a result of his medical condition. (See Id. at
15

In his response, Plaintiff states that he does not seek to impose supervisory liability on
Defendant Tessier, but rather, seeks to impose liability based only on Defendant Tessier’s direct
involvement. (Doc. 77 at 3).

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22). In its previous order (Doc. 59), the court noted that Plaintiff had not alleged why his
ulcerative colitis caused him to continue to miss meals if he was receiving his requested medical
diet. Accordingly, the court allowed Plaintiff to amend his complaint as to why he required a
meal pass after he began receiving his medical diet and nutritional supplements. (Doc. 59 at 18).
In the SAC, Plaintiff alleges that he is often unable to receive his prescriptions and that his
symptoms are “clinically considered inflamed at all times.” (Doc. 68-1 at ¶¶ 223-224). Although
these allegations seem to be contradicted by other allegations in the complaint, the court
nonetheless accepts Plaintiff’s allegation as true, as it must, and concludes that it is sufficient to
state a condition of confinement claim against Defendant Russell and Defendant Howell.
However, after careful review of the SAC complaint, the court concludes that this claim
must be dismissed as against Defendant Tessier. While there are allegations that Defendants
Russell and Howell knew that Plaintiff’s condition was causing him to miss meals16, there are no
allegations demonstrating that Defendant Tessier was aware of such a risk. Consequently,
Plaintiff has failed to satisfy the subjective element of the Eighth Amendment inquiry as to
Defendant Tessier.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 73) is GRANTED in
part and DENIED in part.
DATED at Denver, Colorado, this 1st day of July, 2015.
BY THE COURT:

16

Plaintiff has alleged that his mother spoke with Defendant Russell and explained how
Plaintiff’s medical condition interfered with his ability to attend meals at the regularly scheduled times.
Doc. 68 at ¶ 137. Plaintiff also alleged that Defendant Howell attended a “staffing” where Plaintiff
thoroughly explained all of the issues that he had complained about in grievances and letters. (Id. at ¶
186). Although the question is quite close, the court concludes that under the liberal construction afforded
to Plaintiff at this stage of the proceedings, these allegations are sufficient.

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s/Craig B. Shaffer__________
United States Magistrate Judge

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