Buhl v. Sproul et al

Filing 62

ORDER ADOPTING 54 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE: The 29 Federal Bureau of Prisons' Motion to Dismiss Pursuant to Fed. R. Civ. p. 12(b)(1) and 12(b)(6) is granted. The 30 Federal Bureau of Prisons' Partial Motion f or Summary Judgment for Failure to Exhaust Administrative Remedies is granted. Plaintiff's 41 Cross Motion for Summary Judgment is denied. Plaintiff's 48 Motion in Traverse and Renewed Motion for Summary Judgment is denied. Plaintiff 's 61 Motion for Declaratory Judgment Addendum is denied. By 4/27/2015 the plaintiff, Leroy Buhl may file an amended complaint amending and restating his claim under the Eighth Amendment which claim is now alleged in the complaint [# 1 ] as the sixth claims for relief. By Judge Robert E. Blackburn on 3/16/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00302-REB-CBS
LEROY BUHL,
Plaintiff,
v.
BLAKE DAVIS,
C. DANIELS, and
FEDERAL BUREAU OF PRISONS,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Federal Bureau of Prisons’
Motion to Dismiss Pursuant to Fed. R. Civ. p. 12(b)(1) and 12(b)(6) [#29]1 filed
August 15, 2014; (2) the Federal Bureau of Prisons’ Partial Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies [#30] filed August 15,
2014; (3) the Cross Motion for Summary Judgment [#41] of the plaintiff, filed October
16, 2014; (4) the “Motion in Traverse” and “Renewed Motion for Summary
Judgment” [#48] filed November 19, 2014; (5) the recommendation [#54] of the United
States Magistrate Judge which was made from the bench and is reflected in a transcript
[#57] of that hearing; and (6) the “Motion for Declaratory Judgment Addendum”

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“[#29]” 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.

[#61] filed March 13, 2015. The plaintiff filed a combined response [#33] addressing the
motions of the defendants, and the defendants filed replies [#38 & #39]. The
defendants filed responses [#47 & #50] to the motions for summary judgment of the
plaintiff. The plaintiff filed an “Addendum to Motion for Summary Judgment” [#51].
The plaintiff filed objections [#60] to the recommendation.
The magistrate judge conducted a hearing [#53] on the four motions. The
plaintiff, Leroy Buhl, is incarcerated and is acting pro se. Mr. Buhl participated in the
hearing by telephone. Addressing the issues raised in the motions from the bench, the
magistrate judge recommended that the motion to dismiss and motion for summary
judgment of the defendants be granted and that the motions of the plaintiff be denied.
Mr. Buhl was provided with a transcript [#57] of the hearing.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, the objections, the other filings in this case, and the applicable case
law. Because the plaintiff is proceeding pro se, I have construed his pleadings and
other filings 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). I overrule the objections and approve and adopt the
recommendation.
The plaintiff, Leroy Buhl, is a prisoner incarcerated at the United States
Penitentiary, High Security, in Florence, Colorado. Still pending are his fifth and sixth
claims for relief. His other claims were dismissed previously. Defendants Blake Davis
and C. Daniels never have been served with a summons and complaint. Thus, the

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magistrate judge concluded, correctly, that the only defendant currently before the court
is the Federal Bureau of Prisons.
In his fifth claim for relief, Mr. Buhl alleges that the Bureau of Prisons has failed
and refused to provide any accommodations for the vision impairment suffered by Mr.
Buhl. He says he has difficulty walking in his cell and using the shower. He says he is in
great danger of falling when leaving his cell, and he is unable to read or write clearly.
He contends these facts demonstrate violations of the Americans with Disabilities Act
(ADA) and the Rehabilitation Act.
The magistrate judge concluded that the Bureau of Prisons is not subject to suit
under Title II of the ADA. This is true because the federal government is not included
within the definition of the term “public entity” under the ADA. 42 U.S.C. § 12131(1).
Transcript, pp. 39 - 41. The Bureau of Prisons moved for summary judgment on the
Rehabilitation Act claim of Mr. Buhl, arguing that he has not exhausted his
administrative remedies on this claim. The magistrate judge found Mr. Buhl has not
come forward with evidence to support his contention that he exhausted his
administrative remedies as to his Rehabilitation Act claim. Transcript, p. 47.
In his sixth claim for relief, Mr. Buhl alleges a violation of the Eighth Amendment.
Mr. Buhl suffers from cataracts. He alleges that his cataracts substantially obstruct and
impair his vision. He says a medical doctor has determined that it is clinically necessary
for Mr. Buhl to have vison correction surgery, but the individual defendants have failed
to schedule Mr. Buhl for this surgery. Mr. Buhl contends this constitutes a violation of
his Eighth Amendment right against cruel and unusual punishment.
The magistrate judge found that the sixth claim for relief is subject to dismissal
for failure to state a claim on which relief can be granted. He noted that the complaint

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[#1] does not specify when a doctor made the determination that Mr. Buhl needs
surgery; it does not specify the nature of the involvement of the individual defendants; or
what the individual defendants knew about the conclusion of the doctor or the condition
of Mr. Buhl. The magistrate judge concluded that the sixth claim for relief does not
include sufficient factual allegations, particularly allegations which might show that
specific Bureau of Prisons employees acted with deliberate indifference to the medical
condition of Mr. Buhl. Transcript [#57], pp. 26 - 38. The magistrate judge noted that he
is not suggesting that Mr. Buhl cannot allege sufficient facts to make this claim viable,
but he concluded that the current complaint does not include sufficient factual
allegations. Transcript [#57], p. 35. The magistrate judge recommends that Mr. Buhl be
given an opportunity to file an amended complaint concerning his sixth claim for relief.
Based on my de novo review of the record, I concur with the analysis and
conclusions of the magistrate judge. The objections [#60] do not vitiate the position of
the magistrate judge.
In his most recent filing, the “Motion for Declaratory Judgment Addendum”
[#61] filed March 13, 2015, Mr. Buhl Mr. Buhl says he recently was provided with
surgery to his right eye. That surgery, he says, restored fifty percent of his vision.
Because the defendants have partially acquiesced to the relief sought by Mr. Buhl, he
contends he is entitled to entry of judgment on his claims. The fact that the defendants
provided Mr. Buhl with some of the relief he seeks does not constitute a concession by
the defendants that Mr. Buhl has asserted a valid claim in this case. Therefore, the
“Motion for Declaratory Judgment Addendum” [#61] will be denied.

THEREFORE, IT IS ORDERED as follows:

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1. That the recommendation [#54] of the United States Magistrate Judge, which
was made from the bench and is reflected in a transcript [#57] of that hearing, is
approved and adopted as an order of this court;
2. That the Federal Bureau of Prisons’ Motion to Dismiss Pursuant to Fed.
R. Civ. p. 12(b)(1) and 12(b)(6) [#29] filed August 15, 2014, is granted;
3. That under Fed. R. Civ. P. 12(b)(1), that portion of the fifth claim for relief
asserting a claim under the Americans With Disabilities Act is dismissed with prejudice
for lack of jurisdiction;
4. That under Fed. R. Civ. P. 12(b)(6), that portion of the sixth claim for relief
asserting a claim under the Eighth Amendment is dismissed without prejudice;
5. That the Federal Bureau of Prisons’ Partial Motion for Summary
Judgment for Failure to Exhaust Administrative Remedies [#30] filed August 15,
2014, is granted;
6. That under Fed. R. Civ. P. 56, that portion of the fifth claim for relief asserting
a claim under the Rehabilitation Act is dismissed with prejudice for failure to exhaust
administrative remedies;
7. That the Cross Motion for Summary Judgment [#41] of the plaintiff, filed
October 16, 2014, is denied;
8. That the “Motion in Traverse” and “Renewed Motion for Summary
Judgment” [#48] filed November 19, 2014, is denied;
9. That the “Motion for Declaratory Judgment Addendum” [#61] filed March
13, 2015, is denied; and
10. That by April 27, 2015, the plaintiff, Leroy Buhl, may file an amended
complaint amending and restating his claim under the Eighth Amendment which claim is
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now alleged in the complaint [#1] as the sixth claim for relief.
Dated March 16, 2015, at Denver, Colorado.
BY THE COURT:

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