McDermid v. Kellar et al

Filing 61

ORDER granting 46 Defendant Grimes-Boorman's Motion to Dismiss for Failure to State a Claim, and dismissing without prejudice plaintiff's claim against defendant Garza, and dismissing this civil action in it's entirety, by Magistrate Judge Craig B. Shaffer on 03/09/15. (Attachments: # 1 attachment)(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03210-CBS
DAVID MCDERMID,
Plaintiff,
v.
HERIBERTO GARZA, and
RENEE D. GRIMES-BOORMAN,
Defendants.
___________________________________________________________________________
ORDER REGARDING DEFENDANT’S MOTION TO DISMISS

Magistrate Judge Craig B. Shaffer
This case is before this court pursuant to the Order of Reference entered on July 17, 2014
(Doc. # 45), and the parties’ unanimous consent to disposition of this action by a United States
Magistrate Judge. Defendant Renee D. Grimes-Boorman filed her Motion to Dismiss (Doc. # 46)
on August 11, 2014. David McDermid filed a response1 (Doc. # 54) on January 5, 2015, and
Defendant Grimes-Boorman submitted her reply (Doc. # 55) on January 15, 2015. This court has
carefully considered these filings, the court file, and the applicable case law.
I. FACTUAL BACKGROUND
On November 22, 2013, Mr. McDermid initiated this action with the filing of a pro se
Prisoner Complaint, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

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Mr. McDermid has attached two exhibits to his response. He did not, however, attach these
exhibits to his Third Amended Complaint. Nor did he reference them or incorporate them into the Third
Amended Complaint. When a party submits materials outside the pleadings in support or in opposition to
a Rule 12(b)(6) motion, the court has broad discretion whether to accept or consider them. See Lowe v.
Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998). The court declines to consider these exhibits in
evaluating the motion to dismiss.

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Narcotics, 403 U.S. 388 (1971). Mr. McDermid filed an amended complaint on December 23,
2013. On January 1, 2014, Magistrate Judge Boyd Boland directed Mr. McDermid to file a
second amended complaint. Judge Boland concluded that the amended complaint did not comply
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure because —
despite naming seven individual defendants — the allegations in Mr. McDermid’s amended
complaint only implicated one of those defendants. Thereafter, Mr. McDermid filed a second
amended complaint alleging claims against three defendants: Heriberto Garza, Renee D. GrimesBoorman, and Michael Hudson2. Defendants Grimes-Boorman and Hudson filed a motion to
dismiss on June 9, 2014, asserting that Mr. McDermid had failed to state a claim for relief
against either of them. Rather than responding to the motion to dismiss, Mr. McDermid sought,
and was granted, permission to file another amended complaint.
In his Third Amended Complaint, filed on July 16, 2014, Mr. McDermid asserts
violations of his Eighth Amendment right against cruel and unusual punishment against
Defendant Garza and Defendant Grimes-Boorman. (Doc. # 43). Specifically, in his first claim for
relief, Mr. McDermid asserts that he is diabetic and requires prescription insulin shots in order
for his body to convert food into energy. On September 27, 2012, Defendant Garza allegedly
reduced Mr. McDermid’s insulin prescription “to the point that [he] started starving.” Mr.
McDermid alleges that he informed Defendant Garza that he was losing weight and that “the
reduced insulin [would] cause [him] to lose weight faster.” Mr. McDermid contends that, as a
result of Defendant Garza’s actions, he developed a perforated ulcer. Defendant Garza, however,
has not been served with a copy of this complaint or any of the previous complaints.
Consequently, he is not a party to the action.

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Defendant Hudson was named in the complaint as “M. Huchan.”

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In his second claim for relief, Mr. McDermid alleges that Defendant Grimes-Boorman
denied giving him insulin on a number of occasions. He lists ten dates on which he allegedly did
not receive insulin and states that “most of those times were due to Defendant GrimesBoorman.” He also alleges that when Defendant Grimes-Boorman administers his shots, she
replaces the insulin with air. He asserts that when he does not “get insulin, [his] body produces
ketones, which by information and belief is an acid that damages the body.” Mr. McDermid
further alleges that on one occasion, Defendant Grimes-Boorman accused him of hiding food and
that “she seemed quite aggressive on the job.” Mr. Mc Dermid seeks an award of compensatory
and punitive damages, and a declaration that the defendants’ actions violated his rights under the
Constitution.
Defendant Grimes-Boorman has moved to dismiss Plaintiff’s Third Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Mr. McDermid has failed to state a claim under
the Eighth Amendment and that his claims are barred by the doctrine of qualified immunity.
II. STANDARD OF REVIEW
A. Motions to Dismiss
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

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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).
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. McDermid 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

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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
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
Defendant Grimes-Boorman has raised the qualified immunity defense as to the single
claim asserted against her. 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

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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).
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.
III. ANALYSIS
A. Defendant Renee D. Grimes-Boorman
Careful review of Mr. McDermid’s Third Amended Complaint and the attached exhibits
demonstrates that he has failed to state a claim for relief against Defendant Grimes-Boorman. To
state a cognizable Eighth Amendment claim for denial of medical care, a plaintiff must allege
facts sufficient to show that jail officials were deliberately indifferent to a serious medical need.
Estelle v. Gamble, 429 U.S. 97, 105 (1976); Mata v. Saiz, 427 F.3d 745, 75 (10th Cir. 2005). To
establish that inadequate medical treatment rises to the level of a constitutional violation, a
plaintiff must satisfy a two-pronged inquiry.
First, the plaintiff must “produce objective evidence that the deprivation at issue was in
fact ‘sufficiently serious.’” Mata, 427 F.3d at 751 (quoting Farmer v. Brennan, 511 U.S. 825,

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834 (1994)). “[T]he question raised by the objective prong of the deliberate indifference test is
whether the alleged harm . . . is sufficiently serious . . ., rather than whether the symptoms
displayed to the prison employee are sufficiently serious.” Id.
Second, the plaintiff must present evidence that the defendant had a “sufficiently culpable
state of mind.” Farmer, 511 U.S. at 834. As the Supreme Court, in Farmer, explained:
[A] prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.
Id. at 837. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997). “To be
guilty of deliberate indifference, the defendant must know that he is creating a substantial risk of
bodily harm.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks
and citation omitted). Under this second prong, 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.
Here, taking all of Mr. McDermid’s allegations as true, it is apparent that he is not
entitled to the relief that he seeks in this lawsuit. As a preliminary matter, Mr. McDermid’s
complaint lacks specific factual allegations to support his claim and, accordingly, is subject to
dismissal under Twombly and Iqbal. In his complaint, he alleges that Defendant GrimesBoorman denied giving him insulin “many times.” He then lists ten days on which he allegedly
did not get insulin, and states that “most” of those times were due to Defendant GrimesBoorman. He further alleges that Defendant Grimes-Boorman “usually” holds the syringe in

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such a manner that she replaces the prescribed insulin with air. These generalized, vague
allegations, standing alone, do not plausibly show that the defendant engaged in any specific
conduct on any specific occasion. Therefore, Mr. McDermid’s allegations fall short of the
specificity required to plausibly support a claim of deliberate indifference to a medical need in
violation of the Eighth Amendment.
Moreover, even if this was not true, Mr. McDermid’s allegations fail to satisfy either
prong of the deliberate indifference inquiry. As to the first component of his Eighth Amendment
claim, Mr. McDermid urges this court to focus on his diabetes diagnosis as the serious medical
need. Although there is little doubt that diabetes can constitute a serious medical need, Mr.
McDermid does not allege that he was generally denied treatment for his diabetes. Rather, his
complaint challenges Defendant Grimes-Boorman’s alleged failure to provide him with insulin
on several, unspecified, occasions over the course of 18 months. Thus, this case is conceptually
different from an ordinary denial of medical care case, because Mr. McDermid’s claim is based
on short-term interruptions or delays in the treatment that he was receiving for his underlying
medical condition. See Bender v. Reiger, 385 F.3d 1133, 1137 (8th Cir. 2004) (“[T]he Eighth
Amendment issue is not whether the infection itself is a “serious medical need,” but rather
whether [plaintiff] had a serious medical need for prompt interferon treatment.”); Smith v.
Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003) (concluding that Plaintiff had alleged a delay in
his treatment for HIV where his claim was based upon short-term interruptions in otherwise
adequate treatment).
“When the basis for a prisoner’s Eighth Amendment claim is a temporary delay or
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

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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 alleged periodic interruptions in Mr.
McDermid’s insulin treatment 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 Mr. McDermid’s complaint shows that he has not alleged that — as
a result of the interruptions in treatment — he suffered any injury that would constitute
substantial harm. Although he alleges that the denial of insulin results in the production of
ketones3, he fails to make any connection between the specific interruptions and this harm. Mr.
McDermid has not stated what his ketone levels were on the days he was allegedly denied
insulin. And the urinalysis test result sheet, attached to his complaint as Exhibit 2B, only show
ketone levels from December 24, 2013, which apparently is not a date on which Defendant
Grimes-Boorman denied Mr. McDermid his insulin. Furthermore, Mr. McDermid has not
alleged what specific harm he suffered as a result of the ketones. His bare and conclusory
allegation that “enough ketones can be life threatening” does not demonstrate any injury, let
alone an injury that could be considered substantial.4

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According to the National Institute of Health, ketones are acids, and in high levels they are
poisonous. http:// www.nlm.nih.gov/medlineplus/ency/article/000320.htm.
4
Mr. McDermid’s allegations regarding his perforated ulcer are related only to the conduct of
Defendant Garza.

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Similarly, Mr. McDermid alleges that “when [he] did not get insulin, [his] blood glucose
rises . . . and often goes over 400, which is considered a critical high reading.” He then states,
without more, that high glucose “causes permanent damage to the body.” However, Mr.
McDermid has not alleged what his glucose levels were on the days he was denied insulin. His
glucose test results, attached to the complaint as Exhibit 2A, are also from a date unrelated to any
of the days he was denied insulin. And he offers no specifics on what damage he has suffered as
a result of his rising glucose levels.
To the extent that Mr. McDermid attempts to allege new injuries (kidney damage and
peripheral neuropathy) in his Response, the court does not consider them. In a Rule 12(b)(6)
motion to dismiss, the court has the discretion to consider matters outside the complaint. Lowe,
143 F.3d at 1381. However, when it does so, it must treat the motion to dismiss as a motion for

summary judgment. See Fed. R. Civ. P. 12(d). “Factual allegations contained in legal briefs or
memoranda are [] treated as matters outside the pleadings for purposes of Rule 12(b).” Fonte v.
Bd. of Managers of Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (citing United
Steelworks of Am., AFL-CIO v. Am. Int’l Aluminum Corp., 334 F.2d 147, 149 (5th Cir. 1964)).
Here, the court declines to consider these new allegations. Therefore, the court concludes that
Mr. McDermid’s Eighth Amendment claim fails on the first component of the deliberate
indifference standard, and may be dismissed on this basis alone.
Even if Mr. McDermid alleged the requisite substantial harm, he has not met the
subjective component of the deliberate indifference standard. To prevail on the subjective prong,
a prisoner must show that the defendant “knew he faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures to abate it.” Callahan v. Poppell,
471 F.3d 1155, 1159 (10th Cir. 2006) (internal citation and quotation marks omitted).

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Here, Mr. McDermid has not alleged any facts demonstrating that Defendant GrimesBoorman knew he faced a substantial risk of harm. Although he generally alleges that Defendant
Grimes-Boorman knew he had been prescribed insulin, there are no factual allegations regarding
her state of mind at the time of the specific denials. Nor does his complaint contain any
allegations to suggest that Defendant Grimes-Boorman was aware of any risk related to the
periodic denials of insulin. To the extent that Mr. McDermid relies on allegations from previous
versions of his complaint to support the subjective prong, the court has not considered those
allegations. “It is well established that an amended complaint ordinarily supersedes the original
and renders it of no legal effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir.
1991).
The only indication regarding Defendant Grimes-Boorman’s state of mind is Mr.
McDermid’s allegation that — on at least one occasion — Defendant Grimes-Boorman
apparently denied Mr. McDermid insulin because he had not eaten. A review of the exhibits
attached to the complaint shows that Mr. McDermid has strong opinions on how much insulin he
should be given and when. However, factual allegations showing a mere difference of opinion as
to the proper course of treatment do not state a constitutional violation. Perkins, 165 F.3d at 811.
Mr. McDermid’s disagreement — with the defendant’s decision to deny him insulin because he
had not eaten — amounts to, at most, 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.”). And Mr.
McDermid’s allegation that Defendant Grimes-Boorman’s actions were “personal” is, without
more, conclusory and insufficient to carry his burden. Therefore, Mr. McDermid has not
sufficiently alleged that Defendant Grimes-Boorman acted with a culpable state of mind.

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Because Mr. McDermid has failed to satisfy either prong of the analysis, the Court
concludes that he has failed to state a claim that Defendant Grimes-Boorman was deliberately
indifferent to a serious medical need in violation of the Eighth Amendment.
B. Defendant Heriberto Garza
Mr. McDermid alleges that Defendant Garza violated his Eighth Amendment rights by
reducing his insulin dosage, which ultimately resulted in a perforated ulcer. The Third Amended
Complaint was filed over seven months ago on July 16, 2014; however, Mr. McDermid has not
served Defendant Garza with this pleading.
Rule 4(m) of the Federal Rules of Civil Procedure provides in relevant part:
If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against the
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period. This
subdivision (m) does not apply to service in a foreign country
under Rule 4(f) or 4(j)(1).
Fed. R. Civ. P. 4(m). In addition, Local Rule 41.1 provides:
A judicial officer may issue an order to show cause why a case
should not be dismissed for failure to prosecute for failure to
comply with these rules, the Federal Rules of Civil Procedure, or
court order. If good cause is not shown, a district court or
magistrate judge exercising consent jurisdiction may enter an order
of dismissal with or without prejudice.
D.C.COLO.LCivR 41.1.
Mr. McDermid was informed during the July 16, 2014 status conference that Defendant
Garza would not be a part of the case unless and until he was served with the complaint. Because
Mr. McDermid has not offered any explanation as to why he has failed to serve this defendant,
his claim against Defendant Garza is dismissed without prejudice.

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CONCLUSION
In view of the foregoing analysis, Defendant Grimes-Boorman’s Motion to Dismiss
(Doc. # 46) is GRANTED. It is further ordered that Plaintiff’s claim against Defendant Garza is
hereby DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m) for failure to
prosecute. No claims or Defendants remaining, this civil action is dismissed in its entirety.

DATED this 9th day of March, 2015.

BY THE COURT

s/ Craig B. Shaffer
United States Magistrate Judge

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