Mandrell v. Physicians Health Partners

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 12/3/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03245-GPG
PHILLIP S. MANDRELL,
Plaintiff,
v.
RICK RAEMISCH, Executive Director, Colorado Dept of Corrections, and
PHYSICIAN HEALTH PARTNERS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Phillip S. Mandrell, is in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the correctional facility in Sterling, Colorado.
He has filed a Prisoner Complaint, pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983,
claiming that he is being denied adequate medical care, in violation of the Constitution.
The Court must construe the Complaint liberally because Mr. Mandrell is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act
as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has
reviewed the complaint and has determined that it is deficient. For the reasons
discussed below, Mr. Mandrell will be ordered to file an amended complaint.
Plaintiff alleges in the Complaint that in 2013, gastrointestinal surgeons and
physicians at Denver Health Defendant recommended that he undergo surgery to
remove a colonic stricture. However, Defendant Physicians Health Partners (PHP)

refused to authorize the surgery in June 2013 because Plaintiff was close to his
mandatory release date of August 21, 2013. (ECF No. 1, at 3-4). According to Mr.
Mandrell, a clerical error made by the state district court thereafter resulted in an
amended mittimus which reflected the addition of approximately 28 months to his
sentence. Plaintiff continued to suffer pain while the strictured area in his colon
worsened into a bowel blockage, necessitating the performance of emergency surgery
in July 2014. Plaintiff alleges that he made three trips to the emergency room before he
finally received the recommended surgery. Mr. Mandrell asserts that Defendant PHP,
the entity responsible for authorizing inmates to receive surgery and other medical
procedures outside the prison, acted with deliberate indifference to his serious medical
needs by refusing to approve the surgery recommended in 2013, causing him to suffer
extreme pain for another year and a worsening of his condition until it became lifethreatening. Plaintiff claims that the CDOC was negligent in failing to ensure that he
received the recommended surgery for over a year. He seeks monetary, as well as
injunctive relief, because he has been experiencing recent gastrointestinal symptoms
similar to those he had before the surgery, but has not been referred to Denver Health
for follow up treatment.
The Prisoner Complaint is deficient because Mr. Mandrell fails to allege specific
facts to show the personal participation of Defendant Rick Raemisch, the Executive
Director of the Colorado Department of Corrections, in a deprivation of his constitutional
rights. Personal participation is an essential element of a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v. Graham, 473
U.S. 159, 166 (1985). There must be an affirmative link between the alleged
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constitutional violation and each defendant’s participation, control or direction, or failure
to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). A
supervisor can only be held liable for his own deliberate intentional acts. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of Corrections, 455 F.3d 1146,
1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 for their own culpable
involvement in the violation of a person's constitutional rights.”); see also Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (“[Section] 1983 does not recog nize a
concept of strict supervisor liability; the defendant’s role must be more than one of
abstract authority over individuals who actually committed a constitutional violation.”).
Furthermore, with regard to Defendant PHP,1 “‘[t]he established principles of
municipal liability have been found to apply to § 1983 claims brought against private
corporations like [proposed] Defendant PHP.’” Ortiz v. Falk, No. 13-cv-00612-PABMJW, 2014 WL 984933, at *10 (D. Colo. March 13, 2014) (quoting Rhodes v. Physician
Health Partners (PHP), No. 09-cv-482-REB-KLM, 2010 WL 728213, at *5 (D. Colo.
Feb. 24, 2010)). “Therefore, according to the principles of municipal liability, a private
actor such as PHP ‘cannot be held liable solely because it employs a tortfeasor-or, in
other words . . . cannot be held liable under § 1983 on a respondeat superior theory .’”
Id. (quoting Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)). Instead,
Plaintiff must allege facts to show that Defendant PHP directly caused the constitutional
violation by instituting an official policy or custom that was the “moving force” behind the

1

PHP, a private entity, which does business under the name “Correctional Health Partners,”
contracts with the CDOC to manage the referral and approval of medical care by outside specialists,
somewhat in the nature of managed health care outside the prison environment. See Self v. Milyard, No.
11-cv-00813-RBJ-CBS, 2012 WL 3704958, at *3 (D. Colo. July 31, 2012).

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constitutional violation. Monell, 436 U.S. at 694-95; see also City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989). Plaintiff cannot state a claim for relief under § 1983
merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Finally, Mr. Mandrell is reminded that negligent conduct does not violate the
Constitution. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Farmer v.
Brennan, 511 U.S. 825, 828 (stating that the Eighth Amendment is violated when a
prison official acts with deliberate indifference to a substantial risk of serious harm to an
inmate). Accordingly, it is
ORDERED that Plaintiff, Phillip S. Mandrell, file within thirty (30) days from the
date of this order, an amended complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended complaint that
complies with this order within the time allowed, the Court may dismiss some or all of
this action without further notice for the reasons discussed above. It is
DATED December 3, 2014, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher

United States Magistrate Judge

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