Mason, III v. Clear Creek County Sheriff et al

Filing 63

ORDER ADOPTING 60 AS MODIFIED AUGUST 10, 2015 RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING IN PART AND DENYING IN PART 32 DEFENDANT'S MOTION TO DISMISS. The Sheriff's Objections to the Recommendation 61 are SUSTAINED IN PART and OVERRULED IN PART, by Judge William J. Martinez on 09/10/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-1917-WJM-NYW
JAH FREDERICK NATHANIEL MASON, III,
Plaintiff,
v.
CLEAR CREEK COUNTY SHERIFF,
Defendant.

ORDER ADOPTING AS MODIFIED AUGUST 10, 2015 RECOMMENDATION OF
MAGISTRATE JUDGE AND GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on United States Magistrate Judge Nina Y.
Wang’s Recommendation dated August 10, 2015 (“Recommendation,” ECF No. 60),
which recommended granting in part and denying in part a motion to dismiss filed by
Defendant Clear Creek County Sheriff (“Sheriff”) (ECF No. 32). The Recommendation
is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b). The Sheriff filed a timely Objection to the Recommendation. (ECF No. 61.) For
the reasons set forth below, the Sheriff’s Objection is sustained in part and overruled in
part, the Recommendation is adopted as modified, and the Sheriff’s motion to dismiss
is granted in part and denied in part.
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de

novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” An objection to a recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Property Know n as 2121 East 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently specific if it “enables
the district judge to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.” Id. In conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id. In the absence of a timely and
specific objection, “the district court may review a magistrate . . . [judge’s] report under
any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72
Advisory Committee’s Note (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record.”).
Because Mason is proceeding pro se, the Court must liberally construe his
pleadings. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as an
advocate for Mason, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
II. BACKGROUND
Mason claims that in late September 2012, he was pulled over in Clear Creek
County, Colorado, and cited for speeding and driving without a license. (ECF No. 9 at

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13.) He was ordered to appear at a traffic citation hearing in November 2012 but he
forgot about that hearing. (Id.) In December 2012, he was arrested in El Paso County,
Colorado, and then transported to the Clear Creek County Jail. (Id. at 13–14.) He was
released on bond in January 2013. (Id. at 15.)
Apparently Mason chose to go to trial on his traffic citation. (Id. at 22.) Trial was
set for June 25, 2014, at 8:00 a.m. (Id. at 22–23.) Due to freeway traffic on the
morning of June 25, Mason arrived an hour late, was arrested for failure to appear, and
once again booked into the Clear Creek County Jail. (Id. at 23–24.) Mason filed his
original complaint (ECF No. 1) and his amended complaint (the currently operative
complaint, ECF No. 9) from jail. He was released sometime between August 18 and
September 15, 2014. (Compare ECF No. 12–1 with ECF No. 27.)
Mason’s complaint alleges numerous constitutional violations arising from his
stay in the Clear Creek County Jail, as well as from certain other actions by Denver
Police and various other government entities. Acting under 28 U.S.C. § 1915(e)(2)(B),
this Court screened Mason’s complaint and dismissed seven of his nine causes of
action as legally frivolous. (ECF No. 13.) The remaining causes of action (discussed in
more detail below) are for religious persecution (Claim 8) and inadequate medical care
(Claim 9), and are at least nominally directed at the Sheriff.
III. ANALYSIS
The Sheriff moved to dismiss Claims 8 and 9 for failure to state a claim. (ECF
No. 32.) The Magistrate Judge recommended granting that motion as to Claim 8,
without prejudice, but denying it as to Claim 9. (ECF No. 60.) Mason filed no objection

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to the recommendation regarding Claim 8 but the Sheriff has objected to the withoutprejudice nature of that recommendation. (ECF No. 61 at 8–9.) The Sheriff has also
objected to the Magistrate Judge’s recommendation that Claim 9 remain. (Id. at 4–8.)
The Court will discuss each Claim in turn.
A.

Claim 8
Claim 8 alleges that the Sheriff persecuted Mason on account of his religious

beliefs when Mason objected to a non-kosher portion of his meal and the entire meal
was replaced with a peanut butter and jelly sandwich. (ECF No. 9 at 25.) As just
noted, Mason filed no objection to the Magistrate Judge’s recommendation that Claim 8
be dismissed. The Court sees no clear error on the face of the record with respect to
that recommendation, and therefore adopts it. See Fed. R. Civ. P. 72 Advisory
Committee’s Note.
The Sheriff, however, insists that the dismissal should be with prejudice rather
than without because the Magistrate Judge has previously denied a motion to amend
and has also stricken an amended complaint filed without first obtaining leave. (See
ECF Nos. 39, 57.) The Sheriff therefore claims that Mason “cannot further amend his
Complaint.” (ECF No. 61 at 9.) Neither of the Magistrate Judge’s previous orders
forbids further amendment, however. The Sheriff is therefore incorrect to say that
Mason can no longer amend under any circumstances.
The Sheriff also contends that any further amendment would be futile. (Id.) The
Court cannot say on this record that all possible amendments would be futile.
Consequently, the Sheriff’s objection to this portion of the Magistrate Judge’s

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Recommendation is overruled.
B.

Claim 9
Claim 9 alleges a denial of medical treatment during Mason’s second stay in the

Clear Creek County Jail, which lasted from June 25, 2014, through at least August 18,
2014, and perhaps as late as September 15, 2014. In relevant part, Claim 9 reads as
follows:
Upon being taken into custody by the Clear Creek Sheriff, I
advised intake deputies that I suffered from a canonical
disability and explained, in detail, the nature of said
disability. When asked if I take any medications for the
condition, I explained that I consume marijuana for anxiety.
(Per Genesis 1:29).[1] Subsequently, I submitted a medical
request for anti-anxiety medication on par with marijuana.
On or about July 14, 2014, I met with the doctor, who
prescribed me olanzapine—which is not an anti-anxiety
med, but an anti-psychotic—with anxiety as a side effect. I
complained of having breathing problems/dizziness/anxiety
and it was discontinued. About July 28, 2014, the doctor
prescribed me Risperdal, which is an anti-psychotic, with
anxiety as a side-effect. . . . The medical staff here at Clear
Creek informed me that per Sheriff Krueger’s policy, they
cannot give me anti-anxiety medications.
(ECF No. 9 at 26.)2
The Magistrate Judge recommended that (1) Claim 9 should survive the Motion

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Genesis 1:29 (KJV) reads, “And God said, Behold, I have given you every herb
bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a
tree yielding seed; to you it shall be for meat.”
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Mason frames this as a “cruel and unusual punishment” claim (id.), obviously invoking
the Eighth Amendment. Because Mason complains of treatment in pretrial detention, his claim
technically derives from the Fourteenth Amendment, rather than the Eighth Amendment. Olsen
v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). But this is a distinction with no
practical difference, because when it comes to claims of inadequate medical care in pretrial
detention, the Fourteenth Amendment “analysis [is] identical to that applied in Eighth
Amendment cases.” Id. (internal quotation marks omitted).

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to Dismiss, (2) it is a claim directed at the Sheriff personally, and (3) Mason has
sufficiently alleged the Sheriff’s personal awareness and/or participation in the alleged
deprivation, such that the Sheriff can be held liable for the actions of his subordinates.
(ECF No. 60 at 5–7.) The Sheriff challenges all three conclusions.
For the reasons explained below, the Court agrees with the Magistrate Judge’s
first recommendation, i.e., that Mason has stated a claim for inadequate medical care.
However, the Court finds that the Magistrate Judge erred in the second and third
conclusions, regarding the Sheriff’s personal participation. Mason has alleged a Monell
claim, not a personal liability claim. Thus, Claim 9 still survives, but in a somewhat
different form.
1.

Adequacy of the Claim

The Sheriff argues that Mason’s “canonical disability” is actually “religious in
nature, and is not medical in nature,” and therefore the Magistrate Judge should have
dismissed Claim 9 because Mason failed to allege an actual medical need. (ECF No.
61 at 1–2, 4.) This requires some exploration of the term “canonical disability.”
In the law, “canonical disability” is an antiquated phrase referring to certain
conditions that the canon law once recognized as grounds for annulling a marriage.
See 1 William Blackstone, Commentaries *434. These conditions included
“consanguinity, or relation by blood; and affinity, or relation by marriage; and some
particular corporal infirmities.” Id. Among those “corporal infirmities” was impotence,
for which “canonical disability” apparently became something of a euphemism. See
Black’s Law Dictionary, s.v. “disability (3)” (10th ed. 2014); see also id., s.v.

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“impediment.”
Here, however, the Court doubts that Mason intended “canonical disability ” to
refer to impotence. Elsewhere in his complaint, Mason continually speaks of his
“canonical disability” in connection with a realization that various government seals
supposedly contain Satanic images. (ECF No. 9 at 5–8, 15, 21.) Mason alleges that
this realization eventually led him to “understand that the Bible is, in part, an
astronomical almanac tracking a 13,000 year cycle called ‘axial precession’ . . .
whereby the earth’s tilt (obliquity) is rapidly shifting to a vertical incline.” (ECF No. 9 at
8–9.) Mason believes that when this axial shift reaches a certain point, it will cause “an
extinction level event.” (Id. at 10.) In his response to the Sheriff’s motion to dismiss,
Mason elaborates:
I allege that I suffer from a serious condition (canonical
disability). . . . I have self-authenticated evidence from the
U.S. Naval Observatory that demonstrates [that] all of life on
the surface of Earth will BE DEAD SOON. This is a serious
condition. I require anti-anxiety medication to deal with the
depression and mental anguish.
(ECF No. 58 at 3.)3
Thus, the Court agrees with the Sheriff that when Mason told jail staff of his
“canonical disability,” he was probably referring ultimately to a religious belief about the
end of the world. Nonetheless, whatever Mason said to jail staff, Mason claims that it
prompted them to “ask[] if [he] take[s] any medications for the condition.” (Id. at 26.)
Mason further claims that he “explained that [he] consume[s] marijuana for anxiety,”

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A party may not use a response to a motion to dismiss to amend the complaint. See
Sudduth v. Citimortgage, Inc., 79 F. Supp. 3d 1193, 1200 n.2 (D. Colo. 2015). The Court notes
Mason’s response only for the clarity it supplies regarding the meaning of “canonical disability.”

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and that he later “submitted a medical request for anti-anxiety medication on par with
marijuana.” (Id.) Thus, Mason eventually asserted a specific claim of anxiety and a
need for medication, which he was denied because the Sheriff allegedly has a policy
prohibiting his staff from dispensing anti-anxiety medications.
The Sheriff argues that, at best, the foregoing shows only a non-constitutional
dispute over a prison doctor’s judgment regarding whether Mason needs anti-anxiety
medication as opposed to anti-psychotic medication. (ECF No. 61 at 5–6.) After
discovery, the Sheriff may indeed be able to demonstrate that this is what actually
happened. As pleaded, however, that is not Mason’s claim. Mason’s complaint does
not contain any allegation suggesting that the prison doctor, using medical judgment,
decided not to prescribe anti-anxiety medication. Rather, the complaint alleges that the
Sheriff forbade anyone from prescribing anti-anxiety medication. Thus, taking Mason’s
allegations as true for present purposes, Mason has alleged a total denial of medical
treatment for his anxiety condition for approximately two months. Under Federal Rule
of Civil Procedure 8(a)’s minimal pleading standards, this is sufficient to state a
Fourteenth Amendment violation (analogous to a Eighth Amendment violation) for
denial of adequate medical care. The Magistrate Judge’s Recommendation is adopted
in that respect.
2.

Attribution to the Sheriff Personally

The Sheriff also objects that the Magistrate Judge improperly found that Mason
had alleged the Sheriff’s personal participation in the decisions regarding Mason’s
medical care. (ECF No. 61 at 6–8.) The Court agrees with the Sheriff and will modify
the Magistrate Judge’s recommendation.
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The Magistrate Judge concluded that Mason was suing the Sheriff for his
personal participation in the alleged denial of medical care, and that Mason “has
adequately pled personal participation.” (ECF No. 60 at 6.) Having reviewed Mason’s
various filings de novo, the Court concludes that Mason has not alleged, and has never
intended to allege, the Sheriff’s personal participation.
Mason’s complaint only mentions the Sheriff with respect to his alleged policies,
which Mason learned about from others:
•

“I was told [by jail staff] that I could not retrieve any information from my
phone, because it is against Sheriff Don Krueger’s policy to open cell
phones in the facility.” (ECF No. 9 at 24.)

•

“Per Sheriff Krueger’s policy, I have been denied the ability or opportunity
to make legal copies . . . .” (Id.)

•

“Later, Deputy Walsh informed me that, per Sheriff Krueger’s policy, they
only have to give me peanut butter and jelly sandwiches . . . .” (Id. at 25.)

•

“The medical staff here at Clear Creek informed me that per Sheriff
Krueger’s policy, they cannot give me anti-anxiety medications.” (Id. at
26.)

•

“Per Sheriff Krueger’s policy, my prisoner account was charged for my
medical treatment . . . .” (Id.)

•

“Request for Relief * * * Claims Six-Nine: $33,000 for violation of rights by
Clear Creek Sheriff policies.” (Id. at 28.)

The question of the Sheriff’s personal participation arose for the first time in a

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footnote in the Sheriff’s motion to dismiss: “The pro se Plaintiff’s pleadings cannot be
construed as asserting individual claims against the Sheriff. If this Court disagrees . . .
the Sheriff reserves the right to raise the defense of qualified immunity in a subsequent
motion.” (ECF No. 32 at 1.) Mason’s response to that m otion contained nothing to
refute this footnote. (ECF No. 58.) Rather, Mason continued to assert claim s arising
from the Sheriff’s policies, as implemented by others:
•

“In my case, much of the delay [in securing a kosher diet] was the result of
Sheriff policy to make the Prisoners see the nurse, who then approves the
religious diet.” (Id. at 2.)

•

“Whether or not the delay in placing me on the religious diet list was
reasonable is a fact question for the jury. None-the-less, the Sheriff
Deputies and medical staff showed deliberate indifference to my religious
beliefs . . . .” (Id.)

•

“Under the Sheriff’s policy, he does not permit the medical staff to give
prisoners anti-anxiety medications. . . . This is a deliberate and intentional
denial of medical assistance, per policy.” (Id. at 3.)

•

“Sure, I consented to try other alternatives BECAUSE the Sheriff would
not let the Dr. give me adequate treatment. It was not a disagreement
over the treatment, the Sheriff simply does not permit the Dr. [to] give antianxiety meds in his jail. To deny the right treatment, in favor of the wrong
treatment—as a matter of policy, is deliberate indifference to a serious
medical need.” (Id.)

Given all this, the Court understands Mason to be alleging only a claim under
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Monell v. Department of Social Services, 436 U.S. 658 (1978), for municipal liability
based on the Sheriff’s alleged policies, not a claim against the Sheriff personally. See,
e.g., Cordova v. Aragon, 569 F.3d 1183, 1193 (10th Cir. 2009) (“To succeed in a §
1983 claim against a municipality, a plaintiff must show two elements: (1) a municipal
employee committed a constitutional violation, and (2) a municipal policy or custom was
the moving force behind the constitutional deprivation.” (internal quotation marks
omitted)); Garcia v. Salt Lake Cnty., 768 F.2d 303, 308 n.4 (10th Cir. 1985) (“The
Sheriff's policy, also attributable to the jail physician, thus qualified as policy attributable
to a municipal policymaker under Monell.”); see also Bristol v. Bd. of Cnty. Comm’rs of
Cnty. of Clear Creek, 312 F.3d 1213, 1219 (10th Cir. 2002) (county sheriffs in Colorado
are constitutionally independent from boards of county commissioners and have
plenary authority over their deputies).
Accordingly, the Court sustains the Sheriff’s objection and modifies the
Recommendation to permit Mason to pursue a Monell claim, rather than a personal
participation claim against the Sheriff.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Sheriff’s Objections to the Recommendation (ECF No. 61) are SUSTAINED
IN PART and OVERRULED IN PART, as stated above;

2.

The Recommendation (ECF No. 60) is ADOPTED AS MODIFIED, as stated
above; and

3.

The Sheriff’s Motion to Dismiss (ECF No. 32) is GRANTED IN PART and

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DENIED IN PART. Mason’s eighth claim for relief is DISMISSED without
prejudice. The Sheriff’s Motion to Dismiss is otherwise DENIED.
Dated this 10th day of September, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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