O'Neill v. Correctional Health Care Company, et al

Filing 15

ORDER to Dismiss in Part and to Draw in Part by Judge Lewis T. Babcock on 1/16/15. Defendants Hishoe, Klug, Patterson, Trull, Deno and Hebert are terminated. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02114-GPG
NEAL O’NEILL,
Plaintiff,
v.
CORRECTIONAL HEALTHCARE COMPANY,
RN KATHY ROBINSON, Director of Medical,
DOCTOR HOWARD,
SHERIFF DEPUTY NUNCIO,
NURSE MUZZY,
SHERIFF DEPUTY HISHOE,
DEPUTY SGT. DENO,
DEPUTY SERGEANT KLUG,
DEPUTY SGT. PATTERSON,
NURSE TRULL, and
DEPUTY SGT. HEBERT,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW IN PART

Plaintiff Neal O’Neill currently is detained at the El Dorado County Jail in
Placerville, California. Plaintiff was detained at the El Paso County Criminal Justice
Center in Colorado Springs, Colorado, when he initiated this action on July 30, 2014, by
filing a Prisoner Complaint pursuant to 42 U.S.C. §§ 1983 and 1985 and the Americans
with Disabilities Act (ADA), 42 U.S.C. § “12102(c),” and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff is challenging the
conditions of his confinement while he was detained at the Criminal Justice Center.
On August 4, 2014, Magistrate Judge Boyd N. Boland granted the § 1915 Motion
and directed Plaintiff to amend the Complaint. Specifically, Plaintiff was directed to file
an Amended Complaint that complies with Fed. R. Civ. P. 8. Plaintiff was told that (1)
his claims are conclusory, disorganized, repetitive, and vague; (2) he does not state

which claims are asserted pursuant to § 1983 and which ones are asserted pursuant to
the ADA; (3) a claim cannot be asserted against a municipality when only isolated
incidents are alleged; (4) claims cannot be presented pursuant to the ADA unless a
plaintiff is a qualified individual with a disability; (5) claims must be stated in a simple
and concise manner and not in a long, chronological statement; and (6) he must state
how each named defendant participated in the alleged constitutional deprivation.
Plaintiff filed an Amended Complaint on September 16, 2014.
The Court must construe the Amended Complaint liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a
valid claim on which the plaintiff could prevail, [a court] should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate.
See id. For the reasons stated below, the Second Amended Complaint and the action
will be drawn to a district judge and to a magistrate judge in part and dismissed in part
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff asserts seven claims in the Amended Complaint and seeks money
damages. He asserts jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 42 U.S.C. §
1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), 42 U.S.C. § 12112(a) (ADA), and 42 U.S.C. § 1985. Plaintiff’s reliance on
Bivens is misplaced because he does not assert a claim against a federal employee.
Plaintiff titles Claim One, “Thieft [sic] of Wedding Band/Retaliation.” He asserts
that on September 23, 2013, after he removed his knee brace when entering the El
Paso County Courthouse, deputy sheriffs took the brace; and since September 23,
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Plaintiff has not seen the brace. Plaintiff contends the knee brace was given to him by
the El Dorado County Jail, and he needs the brace to walk. Plaintiff further asserts that,
when he attempted to file a grievance regarding the taking of the brace, his wedding
band was taken in retaliation for requesting a grievance form to file against the deputy
who took his brace. Plaintiff also asserts that when he questioned Sergeant Nuss about
his ring, Sergeant Ness stated to Plaintiff that maybe Plaintiff had sold the ring for
commissary products. Plaintiff contends his First Amendment rights, and possibly his
rights under 42 U.S.C. § 1985, have been violated because he has been retaliated
against and denied his right to file a claim.
Claim Two is titled, “Eigth [sic] Amendment Violation.” In this claim, Plaintiff
asserts sheriff deputies took his brace, which placed him at high risk of further injury
and caused him pain. Plaintiff further asserts that within two hours of being booked he
saw medical and again he was denied his brace. Finally, Plaintiff asserts that since
2009 he has been qualified as disabled under 42 U.S.C. § 12112(a).
Claim Three is titled, “8th Amendment Violation(s),” and is asserted against
Defendant Nurse Muzzy who told a deputy sheriff to take Plaintiff’s cane from him only
three weeks after Dr. Herr had prescribed it and five days after Plaintiff had received it.
Plaintiff states he does not know the deputy sheriff’s name.
Claim Four is titled, “Deliberate Indifference,” and is asserted against Defendants
Dr. Howard and Kathy Robinson. Plaintiff asserts that thirty days after Dr. Herr had
ordered the use of the remainder of Plaintiff’s PreserVision tablets and the oral
treatment of toenail fungus all treatments were stopped. Plaintiff further asserts he
grieved these actions, then saw Defendants Dr. Howard and Kathy Robinson, who
would not discuss any of Plaintiff’s medical issues except for a lump on Plaintiff’s head
and removed him from Dr. Herr’s office when he attempted to ask about the other
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medical issues, including denial of his brace, cane, and other medications for his toenail
fungus and macular degeneration.
Claim Five is titled, “Conspired Acts of Retaliation,” and is asserted against
Defendants Deputy Nuncio and Nurse Trull. Plaintiff alleges that Defendant Sheriff
Deputy Nuncio told Nurse Trull to withhold his morning medications on December 16,
2013, because Plaintiff refused to sign a warning that he had filed too many grievances
with medical. Defendant Nuncio then allegedly moved Plaintiff to administrative
segregation for not signing the warning, and according to Nurse Trull falsified Plaintiff’s
signature on a statement that Plaintiff had refused his medications. Plaintiff further
states that his morning medications on December 16, 2013, were delayed for seven
hours.
Claim Six is titled, “Cruel, Unusual Punishment,” and is asserted against Deputy
Nuncio. Plaintiff alleges that Defendant Nuncio ordered him placed in administrative
segregation for five days, where he was stripped of all his clothing and given only a
blanket. Plaintiff further alleges that his personal hygiene items were taken, as well as
his visitation rights, and the cell was not disinfected.
Finally, Claim Seven is titled, “First Amendment Violation,” and is asserted
against Defendants Sergeant Klug, Sergeant Hebert, Sergeant Patterson, Deputy
Hishoe, and Deputy Sergeant Deno. Plaintiff alleges that he desired to file a complaint
with the Colorado Springs Internal Affairs Division; but to do so he needed to use a ball
point pen to fill out the form. Plaintiff contends that from February 14, 2014, until March
15,2014, each of these defendants refused to provide him with a ball point pen; and in
doing so they hindered his efforts to complete required administrative procedures prior
to filing this Complaint.
The following claims and defendants will be dismissed for the following reasons.
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In Claim One, Plaintiff fails to state who retaliated against him by taking his
wedding ring. The only individual named in Claim One is Sergeant Ness, who is not
listed as a defendant in this action. The only claim asserted against Sergeant Ness is
that he made a slanderous comment about Plaintiff by stating Plaintiff sold his wedding
ring to purchase commissary items.
A claim of slander does not state a cognizable claim under 42 U.S.C. § 1983,
because damage to one’s reputation is not enough to implicate due process protections.
See Paul v. Davis, 424 U.S. 693, 701 (1976).
Furthermore, Plaintiff’s theft of property claim lacks merit for the following
reasons. The United States Constitution guarantees due process when a person is
deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994). However, “neither negligent nor intentional deprivations of property under
color of state law that are random and unauthorized give rise to a § 1983 claim where
the plaintiff has an adequate state remedy . . . .” Gillihan v. Shillinger, 872 F.2d 935,
939 (10th Cir. 1989), overruled on other grounds by Clark v. Wilson, 625 F.3d 686, 691
(10th Cir. 2010); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (finding that an
unauthorized intentional deprivation of property does not violate due process if an
adequate postdeprivation remedy for the loss is available).
A prison grievance procedure is an adequate post deprivation remedy if the
grievance procedure provides a meaningful remedy. See Hudson, 468 at 536 & n.15;
Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). If an administrative remedy
exists, it has a “presumption of adequate due process” that “may stave off a facial
attack.” Freeman v. Dep't of Corrs., 949 F.2d 360, 362 (10th Cir.1991). In order to
overcome the presumption of adequacy, the complaint must state “specific facts”
showing that the remedy was “unresponsive or inadequate.” Id.; see also Durre v.
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Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (affirming dismissal of plaintiff’s due
process deprivation of property claim, stating that “[i]n order to state a claim under §
1983, a complaint must allege facts sufficient to show deprivation, in this case the lack
of an adequate state remedy”).
Plaintiff does not assert that the El Paso County Criminal Justice Center’s
grievance procedure was unresponsive or inadequate with respect to the loss of his
ring. In fact, a letter Plaintiff attached to the Amended Complaint, which he received
from the Commander of Detention Operations Division at the Justice Center,
acknowledged that his ring was lost while in the Justice Center’s care and granted him
reimbursement. ECF No. 10 at 20.
Moreover, Plaintiff also has an adequate remedy available in state court under
state law. See, e.g., Cooper v. Belcher, 2010 WL 3359709, at *15 (D. Colo. Aug. 25,
2010) (unpublished) (noting that “[a]dequate state remedies are not limited to the filing
of grievances, but include filing complaints in state court.”) (internal citations omitted).
Plaintiff further states in Claim One that there was an act of conspiracy to
interfere with his filing a complaint. The claim is conclusory and vague and fails to
comply with Fed. R. Civ. P. 8 requirements and to state how he was deprived of
asserting this claim in violation of his First Amendment rights. Plaintiff has been warned
that he must comply with Rule 8.
Finally, Plaintiff’s vague statement that he is asserting a 42 U.S.C. § 1985 claim
is not supported by facts. Plaintiff's allegations do not support a claim under § 1985(1)
(preventing officer from performing duties) or § 1985(2) (obstructing justice, intimidating
party, witness, or juror). Plaintiff, however, may be attempting to assert a claim under
§ 1985(3), which creates a cause of action against persons who conspire to deprive a
person or class of persons equal protection or privileges. See Bisbee v. Bey, 39 F.3d
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1096, 1102 (10th Cir. 1994). But to state a claim under § 1985(3), a plaintiff must allege
four elements: (1) a conspiracy; (2) for the purpose of depriving, directly or indirectly,
any person or class of persons of equal protection of the laws, or of equal privileges and
immunities under the laws; (3) the conspirators committed some act in furtherance of
the conspiracy; and (4) the plaintiff was either injured in his person or property or was
deprived of having and exercising any right or privilege of a citizen of the United States.
See Griffin v. Breckenridge, 403 U.S. 88, 103–04 (1971). Plaintiff fails to allege the four
elements.
Accordingly, the Court finds Plaintiff fails to state an arguable Fourteenth
Amendment due process claim regarding the theft of his wedding band in Claim One.
Plaintiff also fails to assert retaliation, a violation of § 1985, or interference with filing a
complaint regarding Claim One by any named defendant. Claim One, therefore, will be
dismissed as legally frivolous.
For the same reasons stated in Claim One, Plaintiff fails to assert a loss of
property claim in Claim Two regarding his knee brace being taken by unnamed sheriff
deputies. Plaintiff’s reference to the ADA claim in Claim Two more properly is
addressed in Claims Three and Four. The property claim in Claim Two will be
dismissed as legally frivolous.
In Claim Five, Plaintiff asserts that Defendant Nurse Trull was directed by
Defendant Sheriff Deputy Nuncio to withhold his medication on December 16, 2013.
The Eighth Amendment prohibits prison officials from being deliberately indifferent to
the serious medical needs of prisoners in their custody. See Estelle v. Gamble, 429
U.S. 97, 104-06 (1976). Deliberate indifference means that “a prison official may be
held liable . . . 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.” Farmer v.
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Brennan, 511 U.S. 825, 847 (1994). Mere negligence does not violate the Eighth
Amendment. See Whitley v. Albers, 475 U.S. 312, 319 (1986).

Even if a defendant’s actions amounted to gross negligence, the constitutional
claim still must be dismissed, because deliberate indifference requires a higher degree
of fault than gross negligence. See Berry v. City of Muskogee, 900 F.2d 1489, 1495
(10th Cir. 1990). Furthermore, de minimis infringements of constitutional rights are not
actionable under 42 U.S.C. § 1983. Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979).
Plaintiff’s factual allegations will not support a claim of deliberate indifference
against Defendant Trull. Plaintiff states that within seven hours he was given his
medication. He does not assert that he suffered any ill effects from not being given his
medication on the one occasion. There is no indication that Defendant Trull acted with
deliberate indifference. Possibly Defendant Trull was grossly negligent in not insisting
Plaintiff be given his medications or reporting Defendant Nuncio’s actions, but even is
Defendant Trull was grossly negligent the claim still must be dismissed. See Berry, 900
F.2d at 1495. Claim Five, as asserted against Defendant Trull will be dismissed as
legally frivolous.
Finally, Claim Seven fails to set forth a constitutional violation. Plaintiff claims he
was denied a ball point pen, from February 14, 2014, through March 15, 2014, to
complete a complaint (Citizens Complaint) he wanted to send to the Internal Affairs
Division. Plaintiff contends that a ball point pen was required to complete the form,
because of carbon copies, and Defendants Klug, Hebert, Patterson, Hishoe, and Deno
would not provide the pen.
Upon review of the original and the amended Complaints, the Court found as
follows. Plaintiff attached five Complaint Receipt forms to the original Complaint. See
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ECF No. 1 at 25-29. Three of the complaints are signed and dated on March 6, 2014,
and address his lack of adequate medical treatment and theft of property without proper
compensation. Also, at least three of the complaints were dated as received by jail
staff. Id. at 27-29. On Page Eighteen of the Amended Complaint, Plaintiff states that
he has exhausted his administrative remedies by attempting to resolve each issue
before filing this action, ECF No. 10 at 18; and in the original Complaint, ECF No. 1 at
17-18, Plaintiff states that the complaint he intended to file with the Internal Affairs
Division is a Citizens Complaint, was his attempt to “police the police.” Furthermore,
Plaintiff concedes there is a Kiosk machine that detainees use to process a grievance of
adverse conditions, but he contends the paper grievances generated get lost, deleted,
or ignored. Id. at 18.
The right of access to the courts extends only as far as protecting an inmate’s
ability to prepare initial pleadings in a civil rights action regarding his current
confinement or in an application for a writ of habeas corpus. See Wolff v. McDonnell,
418 U.S. 539, 576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). An
inmate must satisfy the standing requirement of “actual injury” by showing that the
denial of legal resources hindered his efforts to pursue a nonfrivolous claim. Casey,
518 U.S. at 349-353.
In Casey, the Supreme Court cites two examples of when an inmate’s efforts to
pursue a legal claim may be hindered. First, an inmate’s efforts may be hindered when
a complaint prepared by an inmate is dismissed for failure to satisfy a technical
requirement due to deficiencies in a prison’s legal assistance facilities. Casey, 518 U.S.
at 351. Another example of hindering an inmate’s efforts would be when an inmate is
so stymied by inadequacies of the law library that he is unable to file a complaint. Id.
Neither of the examples set forth in Casey are at issue in this case.
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The Court finds no constitutional right for Plaintiff to file a complaint with the
Internal Affairs Division that is separate from the grievance procedure provided at the
Justice Center. Furthermore, Plaintiff does not claim that Defendants Klug, Hebert,
Patterson, Hishoe, or Deno were responsible for deleting, losing, or ignoring any
grievances he filed. Claim Seven, therefore, will be dismissed as legally frivolous.
The remaining claims as set forth below will be drawn to a presiding judge and to
a magistrate judge:
Claim Three-Defendant Nurse Muzzy violated the ADA (construed
as filed pursuant to 42 U.S.C. §§ 12102-12213 and against Correctional
Health Care Company) and his Eighth/Fourteenth Amendment rights
when she took Plaintiff’s cane. (If Plaintiff was a pretrial detainee at the
time the alleged violations took place, his Eighth Amendment claims
properly are asserted pursuant to the Due Process Clause of the
Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979). Nonetheless, the Eighth Amendment provides the analytical
framework for addressing Plaintiff’s claims. See Craig v. Eberly, 164 F.3d
490, 495 (10th Cir. 1998));
Claim Four-Defendant Kathy Robinson violated the ADA (construed
as properly filed pursuant to 42 U.S.C. §§ 12102-12213 and asserted
against Correctional Health Care Company) and Defendants Kathy
Robinson and Dr. Howard violated Plaintiff’s Eighth/Fourteenth
Amendment rights when Defendants Dr. Howard and Kathy Robinson
failed to acknowledge and address the denial of his brace, cane, and
medications for his macular degeneration and toenail fungus; and
Claims Five and Six-Defendant Nuncio violated Plaintiff’s
Eighth/Fourteenth Amendment rights when he denied Plaintiff his
medications, falsified Plaintiff’s signature stating he refused medications,
and placed him in administrative segregation for refusing to sign a warning
notice that he was filing too many grievances regarding his medical needs.

Accordingly, it is
ORDERED that the Complaint and Claim Three as asserted against Defendant
Nurse Muzzy, Claim Four as asserted against Defendants Correctional Health Care
Company, Dr. Howard, and Kathy Robinson, and Claims Five and Six as asserted
against Defendant Sheriff Deputy Nuncio shall be drawn to a presiding judge and when
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appropriate to a magistrate judge pursuant to D.C.COLO.LCivR 40.1(a). It is
FURTHER ORDERED that Claims One, Two, Five as it pertains to Defendant
Nurse Trull, and Seven are dismissed with prejudice as legally frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). It is

FURTHER ORDERED that Defendants Sheriff Deputy Hishoe, Deputy Sergeant
Deno, Deputy Sergeant Klug, Deputy Sergeant Patterson, Nurse Trull, and Deputy
Sergeant Hebert are terminated from the action.
DATED at Denver, Colorado, this 16th

day of January

, 2015

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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