Buhl v. Sproul et al
ORDER 1. That the Recommendation of United States Magistrate Judge 115 filed December 03, 2015, is approved and adopted as an order of this court; 2. That the objections 121 of the plaintiff are overruled; 3. That the 85 Motion to Amend Complaint to Include an Additional Defendant: Steven Clough is Denied as futile; 4. That the 96 Motion for Temporary Restraining Order and a Preliminary Injunction is Denied as moot, by Judge Robert E. Blackburn on 1/25/2016.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00302-REB-CBS
CHARLES SAMUELS, and
FEDERAL BUREAU OF PRISONS
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The matters before me are (1) the Motion to Amend Complaint to Include an
Additional Defendant: Steven Clough [#85]1 filed July 8, 2015; (2) the Motion for
Temporary Restraining Order and a Preliminary Injunction [#96] filed July 29, 2015;
and (3) the Recommendation of United States Magistrate Judge [#115] filed
December 3, 2015. The plaintiff filed objections [#121] to the recommendation. I
overrule the objections, approve and adopt the recommendation, and deny the
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
“[#85]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this case, and the applicable case
Mr. Buhl is proceeding pro se. Thus, I have construed his pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
I. Motion to Amend
The plaintiff, Leroy Buhl, is an inmate incarcerated by the Federal Bureau of
Prisons. Mr. Buhl suffered from cataracts in both eyes. He seeks to add Dr. Steven
Clough as a defendant. The plaintiff alleges that Dr. Clough “illicitly” amended the
Regional Medical Director’s authorization for cataract surgery on his left eye. The
plaintiff provided the court with a copy of his medical records, which he claims show Dr.
Clough “overriding” the decision of the Regional Medical Director to perform cataract
surgery on his left eye. The medical record shows, however, that Dr. Clough merely
recommends that the plaintiff receive cataract surgery on his right eye before receiving
surgery on his left eye. Dr. Clough’s recommendation seems to be based on the fact
that the plaintiff’s vision was actually worse in his right eye. Therefore, the plaintiff’s
contention that Dr. Clough “impermissibly overrode” the Regional Medical Director’s
recommendation is in fact vitiated by the plaintiff’s own exhibit.
As the magistrate judge points out, it is clear that the allegations of the plaintiff
and his arguments amount to little more than a disagreement with Dr. Clough’s
recommendations. The magistrate judge is correct that a disagreement between a
prisoner and medical personnel as to the course of his treatment does not create a
cause of action. Perkins v. Kansas Dept. Of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
At most, the plaintiff’s allegations amount to a claim for medical malpractice, which is
not actionable under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97
The magistrate judge concluded that the plaintiff’s motion to amend should be
denied because the claim would ultimately be subject to dismissal and thus the
amendment would be futile. Subject to Federal Rule of Civil Procedure 15(a), a
complaint may be amended when justice so requires. However, a court may deny a
motion to amend if the court determines the amendment would be futile. Anderson v.
Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). Such a proposed amendment is futile
when the complaint, as amended, would be subject to dismissal. Full Life Hospice,
LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). As the magistrate judge
correctly finds in his recommendation, the plaintiff’s own exhibit vitiates his claims
against Dr. Clough. Thus, amending the complaint to include Dr. Clough would be
II. Motion for Injunctive Relief
The plaintiff also requests an injunction ordering the Bureau of Prisons to provide
him with cataract surgery on his left eye. However, according to the objections to the
recommendation filed by the plaintiff [#121], the plaintiff has received that surgery.
Thus, his motion for injunctive relief is moot.
The magistrate judge provides a thorough description of the facts evidenced in
the record and an accurate application of the law to those facts. Properly, the
magistrate judge concludes that the motion to amend amd the motion for injunctive
relief filed by the plaintiff should be denied. Nothing in the objections [#121] of the
plaintiff undermines the reasoning and conclusions of the magistrate judge. Therefore, I
approve and adopt the recommendation [#115] and deny the motion to amend as well
as the motion for injunctive relief.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#115] filed
December 03, 2015, is approved and adopted as an order of this court;
2. That the objections [#121] of the plaintiff are overruled;
3. That the Motion to Amend Complaint to Include an Additional Defendant:
Steven Clough is denied as futile;
4. That the Motion for Temporary Restraining Order and a Preliminary
Injunction is denied as moot.
Dated January 25, 2016, at Denver, Colorado.
BY THE COURT:
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