Moore v. Zimmer et al

Filing 9

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/23/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00034-LTB
GEORGE MOORE,
Plaintiff,
v.
ELIAS DIGGINS, Acting Sheriff of the Denver Sheriff Department;
RN ZIMMER, Intake RN;
DR. CHRISTIAN STOB; Denver Health Medical Center Doctor;
CARMEN KASSETY; Denver Health Medical Center Supervisor;
DENVER HEALTH MEDICAL CENTER; and the
DENVER SHERIFF DEPARTMENT,
Defendants.

ORDER TO DISMISS

Plaintiff, George Moore, is an inmate currently incarcerated at the Denver County Jail (DCJ).
Acting pro se, he initiated this action by filing a Prisoner Complaint pursuant to 42 U.S.C. § 1983
and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131, et seq., 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 DCJ.
On January 7, 2015, Magistrate Judge Gordon P. Gallagher granted the § 1915 Motion and,
on January 13, 2015, directed Plaintiff to amend the Complaint. Plaintiff filed an Amended
Complaint on February 11, 2015. (ECF No. 7).
1.

Applicable Legal Principles
In the Prison Litigation Reform Act (PLRA), Pub.L. No. 104–134, 110 Stat. 1321 (1996),

Congress adopted major changes affecting federal actions brought by prisoners in an effort to curb
the increasing number of frivolous and harassing law suits brought by persons in custody. Pertinent
to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of

prisoner claims.
Specifically, Congress significantly amended Title 28 of the United States Code, section
1915, which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e.,
without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review
complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any
action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled
“Screening,” which requires the court to review complaints filed by prisoners seeking redress from
a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
If the complaint is “frivolous, malicious, or fails to state a claim upon which relief can be granted,”
or “seeks monetary relief from a defendant who is immune from such relief,” the court must dismiss
the complaint. 28 U.S.C. § 1915A(b).
Further, the PLRA substantially amended the Civil Rights of Institutionalized Persons Act,
42 U.S.C.A. § 1997e. In this regard, the PLRA amended section 1997e(c) to require the court “on
its own motion or on the motion of a party” to dismiss any action brought by a prisoner with respect
to prison conditions under 42 U.S.C. § 1983 if the action is “frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief.” See 42 U.S.C. § 1997e(c)(1).
Plaintiff is considered a “prisoner” as that term is defined under the PLRA, see 28 U.S.C.
§§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 4).
Thus his allegations must be reviewed in accordance with 28 U.S.C. § 1915(e)(2)(B). Moreover,
his Complaint concerns prison conditions and at least some Defendants appear to be employees of
a governmental entity. Thus, his Complaint must be reviewed under the authority set forth above.

2

See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (“Because Mr. Blaurock is a prisoner
suing government officials, the court is required by federal statute to screen his First Amended
Complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim
on which relief may be granted, or seeks relief from a defendant immune from such relief.”).
In reviewing complaints under these statutory provisions, a viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.Twombly,
550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S.
41, 45–46 (1957)). The question to be resolved is: whether, taking the factual allegations of the
complaint, which are not contradicted by the exhibits and matters of which judicial notice may be
had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations
of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative
level, ... on the assumption that all the allegations in the complaint are true even if doubtful in
fact[.]" Bell Atlantic Corp., 550 U.S. at 555. Moreover, a legally frivolous claim is one in which
the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do
not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989). See Conkleton v.
Raemisch, Civil No. No. 14–1271, ___ Fed. App’x ___, 2015 WL 794901 (10th Cir. Feb. 26, 2015)
(upholding in part District Court’s dismissal as frivolous of prisoner civil rights complaint); Ross
v. Romero, 191 Fed. App’x 682 (10th Cir. 2006) (affirming district court’s sua sponte dismissal of
prisoner’s civil rights complaint under 28 U.S.C. § 1915(b).
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

3

with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se
litigant’s advocate. See id.
2.

Plaintiff’s Factual Allegations
Plaintiff’s alleges that on October 9, 2014, he was arrested and brought to Intake at the DCJ.

As he was waiting to be booked in, he told a deputy that he had been arrested without his cane and
that he was having trouble and experiencing pain when getting up and down and moving around
without it. The deputy told him to tell the medical department about his concerns. When Plaintiff
was seen by the medical intake department, he told the intake nurse, RN Zimmer, that he was in pain
and was supposed to have a cane or a walker. Nurse Zimmer told Plaintiff that he needed to make
this request “upstairs,” on the unit floor where he would be housed. When Plaintiff requested to
speak with her supervisor, she told Plaintiff that he would tell him the same thing and to deal with
it when he got upstairs.
At approximately 7:30 P.M., Plaintiff was moved upstairs to the second floor in Unit F. At
that time, he spoke to the Pod deputy about contacting the medical department to get a cane/walker
because of the pain he was experiencing in moving around due to his bad hip. Plaintiff was told that
the medical department was closed but that he should put in a request slip. The next day, Plaintiff
was called to the medical department where he was seen by Defendant Dr. Stob. Dr. Stob verified
Plaintiff’s medical complaint but told Plaintiff that he did not have either a cane or a walker at that
moment. On that same day, Plaintiff collapsed in his cell when his left hip gave out causing pain
to his hip, groin and lower back. Plaintiff received a walker three hours later.
Although listed as seven separate claims against the various defendants in the Amended
Complaint, Plaintiff asserts two causes of action in the present action. Specifically, he asserts
liability pursuant to the Civil Rights Act, 42 U.S.C. § 1983 and Title II of the Americans with
Disabilities Act (ADA). For the reasons stated below, the Amended Complaint and the action will

4

be dismissed pursuant to screening authority set forth above. The pertinent grounds which will
result in the dismissal of all claims against all Defendants are addressed below.
3.

Liability under 42 U.S.C. § 1983
Plaintiff first seeks to assert liability against Defendants pursuant to 42 U.S.C. § 1983. To

state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. He must
allege: 1) that the alleged misconduct was committed by a person acting under color of state law;
and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451
U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327,
330–331 (1986). In addressing a claim brought under § 1983, analysis begins by identifying the
specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393–394 (1989)
(internal quotations and citations omitted). The validity of the claim then must be judged by
reference to the specific constitutional standard which governs that right. Id.
Claims of denial of medical treatment by pretrial detainees are evaluated under the Due
Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the defendants from
undertaking acts that amount to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). In order
to determine whether the challenged conditions of pre-trial confinement amount to punishment:
[a] court must decide whether the disability is imposed for the purpose of punishment
or whether it is but an incident of some other legitimate governmental purpose.
Absent a showing of an expressed intent to punish on the part of the detention
facility officials, that determination generally will turn on whether [it has] an
alternative purpose ... and whether it appears excessive in relation to [that] purpose....
Thus, if a particular condition or restriction of pretrial detention is reasonably related
to a legitimate governmental objective, it does not, without more, amount to
“punishment.” Conversely, if a restriction or condition is not reasonably related to
a legitimate goal—if it is arbitrary or purposeless—a court may permissibly infer that
the purpose of the governmental action is punishment that may not constitutionally
be inflicted upon detainees.
Id. at 538–39 (citations, brackets and internal quotations omitted).

5

The law is clear that a pretrial detainee is entitled to the same degree of protection against
denial of medical attention which applies to convicted inmates under the Eighth Amendment. See
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). In this regard, the Eighth Amendment
protects convicted prisoners against the infliction of “cruel and unusual punishments.” U.S. Const.
amend. VIII. This protection, enforced against the states through the Fourteenth Amendment,
guarantees incarcerated persons humane conditions of confinement. Specifically, prison officials
must ensure that inmates receive adequate food, clothing, shelter and medical care, and must “take
reasonable measures to guarantee the safety of the inmates.” Famer v. Brennan, 511 U.S. 825, 832
(1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)).
To state an Eighth Amendment violation in the context of medical treatment, an inmate must
demonstrate two elements: (1) he was suffering from a “serious medical need,” and (2) prison
officials were deliberately indifferent to the serious medical need. Gamble v. Estelle, 439 U.S. 97
(1978). The first showing requires the court objectively to determine whether the medical need was
“sufficiently serious.” “[I]t is the harm claimed by the prisoner that must be sufficiently serious to
satisfy the objective component, and not solely ‘the symptoms presented at the time the prison
employee has contact with the prisoner.’ " Martinez, 563 F.3d at 1088 (quoting Mata v. Saiz, 427
F.3d 745, 753 (10th Cir. 2005)). "A medical need is sufficiently serious if it is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention." Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000) (internal quotation omitted).
The second prong requires the court subjectively to determine whether the officials acted
with a sufficiently culpable state of mind. Noting that this subjective standard lies “somewhere
between the poles of negligence at the one end and purpose or knowledge at the other,” id. at 836,
the Supreme Court clarified the appropriate standard as follows.

6

We hold instead that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference . This
approach comports best with the text of the Amendment as our cases have interpreted
it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it
outlaws cruel and unusual “punishments.” An act or omission unaccompanied by
knowledge of a significant risk of harm might well be something society wishes to
discourage, and if harm does result society might well wish to assure compensation.
The common law reflects such concerns when it imposes tort liability on a purely
objective basis. But an official's failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.
Id. at 837–38.
Where the plaintiff's deliberate-indifference claim is premised on a delay in medical care,
such delay "only constitutes an Eighth Amendment violation where the plaintiff can show the delay
resulted in substantial harm." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)) (internal
quotation marks omitted). This substantial harm requirement “may be satisfied by lifelong handicap,
permanent loss, or considerable pain." Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).
Even assuming Plaintiff had a serious medical need, Plaintiff's allegations fall far short of
establishing deliberate indifference— i.e., that any Defendant acted with a sufficiently culpable state
of mind. To establish the subjective component, a plaintiff must show that jail officials “knew he
faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to
abate it.” Farmer v. Brennan, 511 U.S. at 837. Specifically, a jail official “must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. “The question is: ‘were the symptoms such that a prison
employee knew the risk to the prisoner and chose (recklessly) to disregard it?’ ” Martinez, 563 F.3d
at 1089 (quoting Mata, 427 F.3d at 753.
Initially, the Court notes that Plaintiff was arrested without his cane or walker. Therefore,
presumably, he was able to manage without such device at least temporarily as he makes no
7

allegation that arresting officers or jail officials took his cane or walker. As such, RN Zimmer had
no reason to believe that he faced a substantial risk if he was not immediately provided with a
walking assistance device. More importantly, no-one at the DCJ denied him a cane or walker; he
simply was told to seek such device on the Unit Floor when he was housed. Because he was
arrested at night, the medical department on his floor apparently was not open at that time for nonemergencies. He immediately was approved for a walking device the following day but there were
none available at that time. He received a walker later that same day when one became available.
These allegations simply do not show that any Defendant acted with deliberate indifference.
Deliberate indifference to a serious medical need of a prisoner is distinguishable from a negligent
diagnosis or treatment of a medical condition; only the former conduct violates the Eighth
Amendment. Medical malpractice may give rise to a tort claim in state court but does not
necessarily rise to the level of a federal constitutional violation. The Supreme Court explained the
difference between negligence and constitutional claims in Estelle v. Gamble, 429 U.S. 97, 104
(1976). In that case, the prisoner, Gamble, was injured when a bale of cotton fell on him while he
was unloading a truck. He went to the unit hospital where a medical assistant checked him for a
hernia and sent him back to his cell. He returned to the hospital where he was given pain pills by
an inmate nurse and then was examined by a doctor. The following day, his injury was diagnosed
as a lower back strain; he was prescribed a pain reliever and a muscle relaxant. Over the course of
several weeks, Gamble was seen by several doctors who prescribed various pain relievers and
provided him with medical work excuses. Ultimately, despite his protests that his back hurt as much
as it had the first day, medical staff certified Gamble to be capable of light work. During the next
two months, Gamble received a urinalysis, blood test, blood pressure measurement, and pain and
blood pressure medication. Subsequently, a medical assistant examined Gamble and ordered him
hospitalized for treatment of irregular cardiac rhythm.

8

The Supreme Court held that Gamble's allegations failed to state a claim upon which relief
could be granted against the defendant, both in his capacity as a treating physician and as the
medical director of the Corrections Department.
Gamble was seen by medical personnel on 17 occasions spanning a 3–month period
.... They treated his back injury, high blood pressure, and heart problems. Gamble
has disclaimed any objection to the treatment provided for his high blood pressure
and his heart problem; his complaint is "based solely on the lack of diagnosis and
inadequate treatment of his back injury." The doctors diagnosed his injury as a lower
back strain and treated it with bed rest, muscle relaxants and pain relievers.
Respondent contends that more should have been done by way of diagnosis and
treatment, and suggests a number of options that were not pursued. The Court of
Appeals agreed, stating: "Certainly an x-ray of (Gamble's) lower back might have
been in order and other tests conducted that would have led to appropriate diagnosis
and treatment for the daily pain and suffering he was experiencing." But the
question whether an X-ray or additional diagnostic techniques or forms of treatment
is indicated is a classic example of a matter for medical judgment. A medical
decision not to order an X-ray, or like measures, does not represent cruel and unusual
punishment. At most it is medical malpractice, and as such the proper forum is the
state court under the Texas Tort Claims Act.
Gamble, 429 U.S. at 107 (internal citations omitted) (emphasis added).
Like the prisoner in Gamble, Plaintiff at bar has failed to demonstrate that he suffered a
constitutional violation, a prerequisite for recovery under 42 U.S.C. § 1983. Plaintiff's own
allegations indicate that he received a walker the day after he was arrested and taken into custody
at the DCJ. Moreover, he was not given one immediately because there wasn’t one available; no
Defendant refused his request. These allegations simp[ly do not rise to a constitutional violation.
While an intentional refusal to provide any medical treatment to an inmate suffering from
a serious medical need manifests deliberate indifference and is actionable under the Eighth
Amendment, the Constitution does not require that a prisoner receive every medical treatment that
he requests or that is available elsewhere. A disagreement as to the appropriate choice of medical
treatment does not give rise to a constitutional violation because the "right to be free from cruel and
unusual punishment does not include the right to the treatment of one's choice." Layne v. Vinzant,
657 F.2d 468, 473 (1st Cir. 1981).
9

In sum, there is no allegation that suggests that any Defendant knew that Plaintiff faced a
substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to
abate it or that he had any reason to know that he faced any substantial harm. Accordingly,
Plaintiff’s section 1983 deliberate indifference/medical treatment claims will be dismissed. Cf. Shue
v. Laramie County Detention Center, Civil No. 13–8064, 2014 WL 6807739, 4 (10th Cir. Dec. 4,
2014) (county officials were not deliberately indifferent to pretrial detainee's serious medical needs
even if they delayed getting detainee medical treatment for leg injury following a slip and fall
accident).
5.

Americans with Disabilities Act
Plaintiff’s second claim is that Defendants violated Title II of the Americans with Disabilities

Act (“ADA”), as amended 42 U.S.C. § 12131, et seq. Title II of the ADA prohibits discrimination
by public entities, such as state and local prisons. See Pennsylvania Dep't of Corrections v. Yeskey,
524 U.S. 206, 210 (1998). Specifically, Title II of the ADA provides, in relevant part, that “no
qualified individual with a disability shall, by reason of such disability, be excluded form
participation in or be denied the benefits of the services or activities of a public entity or be
subjected to discrimination by such entity.” 42 U.S.C. § 12132. Pursuant to this standard, Plaintiff
must show that: 1) he is a qualified individual; 2) with a disability; and (3) he was excluded from
participation in or denied the benefits of the services, programs, or activities of a public entity, or
was subjected to discrimination by any such entity; 4) by reason of his disability. 42 U.S.C. §
12132.
Assuming that Plaintiff is a qualified individual with a disability under the ADA, he does not
allege that he was excluded from any service, program, or activity on the basis of his disability. In
actuality, this claim is premised on Plaintiff's disagreement with the medical judgment of the
medical professionals charged with his care. This, however, fails to state a claim under the ADA.

10

See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (“[P]urely medical
decisions ... do not ordinarily fall within the scope of the ADA or the Rehabilitation Act.”); Rashad
v. Doughty, 4 Fed. App’x 558 (10th Cir. 2001) (holding that "the failure to provide medical
treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain
circumstances, does not constitute an ADA violation); Moore v. Prison Health Services, Inc., 201
F.3d 448 (10th Cir. 1999) (finding that the ADA and Rehabilitation Act afford disabled persons legal
rights regarding access to programs and activities enjoyed by all, not a general cause of action for
challenging the medical treatment of their underlying disabilities). Accord Burger v. Bloomberg,
418 F.3d 882 (8th Cir. 2005) (medical treatment decisions are not a basis for ADA claims); Bryant
v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (holding that “the [ADA] would not be violated by a
prison's simply failing to attend to the medical needs of its disabled prisoners ... [t]he ADA does not
create a remedy for medical malpractice.”); Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) (“[A]
plaintiff's showing of medical unreasonableness must be framed within some larger theory of
disability discrimination.”); Thomas v. Pa. Dep't of Corr., 615 F.Supp.2d 411, 429 (W.D. Pa. 2009)
(plaintiff's requests for a handicap cell that were denied based on a medical determination that they
were not warranted did not support discriminatory treatment in violation of Title II of the ADA).
The Court finds that Plaintiff’s allegations fail to state a claim against any named Defendant
for a violation of the ADA. Therefore, his ADA claim will be dismissed as well.
Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A and/or 42 U.S.C.A. § 1997e. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of

11

appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
DATED at Denver, Colorado, this

23rd

day of

March

, 2015

BY THE COURT:

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

12