Tennyson v. Raemisch et al
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATIONS: The Court ADOPTS the Recommendations of the Magistrate Judge ( 64 , 65 , 66 , and 67 ) which now become the Orders of the Court. by Chief Judge Marcia S. Krieger on 2/24/16.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-00707-MSK-CBS
AUDREY L. TENNYSON,
RICK RAEMISCH, CDOC Director;
MICHAEL MILLER, CCCF Warden;
MELINDA McMILLIAN, CCCF Bookkeeper;
LOUIS CABLING, CCCF Head Physician;
JUDY BREZEDINE, CCCF Health Serv. Admin.;
LAURIE KNAPP, CCCF Clinical Supervisor; and
DOUG ROBERTS, CDOC-PPMU Medical Monitor,
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATIONS
THIS MATTER comes before the Court on Plaintiff, Audrey L. Tennyson’s Objection
(#70) to the Magistrate Judge’s Recommendation (#66). Also outstanding are three additional
Recommendations of the Magistrate Judge (#64, 65, and 67), to which there are no timely filed
Mr. Tennyson initiated this pro se 42 U.S.C. § 1983 action against several Colorado
Department of Corrections (CDOC) officers for allegedly requiring him to purchase medication
for gastro-esophageal reflux disease from the prison canteen rather than providing it to him
without cost as a prescribed medication. Prior to bringing suit, Mr. Tennyson invoked the prison
grievance review procedure. After his grievances were denied, he initiated this lawsuit.
Standard of Review
The Court reviews the Magistrate Judge’s recommendation on dispositive motions de
novo. See Fed. R. Civ. P. 72(b)(3); United States v. One Parcel of Real Property, 73 F.3d 1057,
1060 (10th Cir. 1996). When a recommendation resolves a non-dispositive matter, the Court may
only set aside the any part of the recommendation’s order that is clearly erroneous or contrary to
law. See Fed R. Civ. P. 72(a). Because Mr. Farrell appears pro se, the Court reviews his
pleadings (including his complaint and objections) liberally, and holds them to a less stringent
standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Trackwell
v. United States Government, 472 F.3d 1242, 1243 (10th Cir. 2007).
Dismissal of claim against Mr. DeCesaro
Mr. Tennyson named, among other defendants, Anthony DeCesaro in his capacity as the
CDOC Grievance Review Authority Officer, alleging that Mr. DeCesaro improperly denied Mr.
Tennyson’s administrative grievance.
The claim against Mr. DeCesaro was dismissed by this Court, sua sponte, (#17), upon the
determination that the Complaint failed to show any unconstitutional conduct by Mr. DeCesaro
as required by 42 U.S.C. § 1983. The Court found that the law is clear that if a defendant’s only
purported role in an alleged constitutional violation is denying a grievance filed seeking redress
for such violation, that defendant has not personally participated in the violation for purposes of
establishing § 1983 liability. Because the Complaint makes no assertions against Mr. DeCesaro
other than that he denied Mr. Tennyson’s grievance, the claim against Mr. DeCesaro was
Mr. Tennyson filed a Motion to Reconsider the Dismissal of Anthony DeCesaro (#30),
arguing that dismissal of this claim was improper because Mr. DeCesaro “acquiesced” in the
violations by “disregard[ing]” his responsibility to review Mr. Tennyson’s grievances, and by
“conspir[ing] to agree with prison officials in denying virtually all prisoner complaints.” He
further contended that Mr. DeCesaro’s authorization of unlawful prison policies is sufficient
individual participation to support a claim against him.
The Magistrate Judge reviewed and denied Mr. Tennyson’s Motion for Reconsideration
for several reasons (#66). The Magistrate Judge first iterated that the law requires individual
participation in unconstitutional conduct to establish § 1983 liability. Then, he reiterated that
when the only alleged action taken by a defendant is denial of an administrative grievance, the
requisite personal participation of the defendant in the allegedly unconstitutional conduct has not
been asserted. Finally, he found that Mr. Tennyson failed to demonstrate any error of law or
fact, or newly discovered evidence that warranted reconsideration.
The Court finds no error in the original dismissal or the Magistrate Judge’s
recommendation that the motion to reconsider be denied. Under Tenth Circuit jurisprudence, as
well as opinions from this Court, it is clear that § 1983 liability requires personal participation in
the alleged constitutional violation. See Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir.
2010); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Indeed, where the
allegations against a particular defendant are limited to that defendant’s denial of an
administrative grievance without any further connection to the underlying violation of
constitutional rights, the requisite personal participation is not established. See Gallagher, 587
F.3d at 1069; see also Bertolo v. Benezee, 601 Fed App’x 636, 639 (10th Cir. Feb. 4, 2015);
Whitington v. Ortiz, 307 Fed. App’x 777, 780 (10th Cir. Jan. 13, 2009); Handy v. Russell, No.
12-cv-02285, 2012 WL 5869161, *3 (D. Colo. Nov. 19, 2012).
Mr. Tennyson’s contention that Mr. DeCesaro “acquiesced” in the alleged constitutional
violation or conspired with other defendants in denying his grievance does not change the nature
of the conduct at issue – denial of the grievance. A contention that Mr. DeCesaro authorized
unlawful prison policies is not alleged in the Complaint, nor has Mr. Tennyson offered anything
other than summary conclusions, which do not prevent dismissal of the claim.
Simultaneous to its Recommendation on Mr. Tennyson’s Motion to Reconsider the
Dismissal of Mr. DeCesaro, the Magistrate Judge issued two additional Recommendations.
First, the Magistrate Judge recommended that Mr. Tennyson’s Motion for a Temporary
Restraining Order (#46) be denied (#64). Second, the Magistrate Judge recommended that Mr.
Tennyson’s Combined Motion to Reconsider, Alter, or Amend Stricken Plaintiff and to
Consolidate Both Actions or for Class Certification (#33) be denied (#67). Proper notice of the
opportunity to object was given, but no objection was timely filed. Finding no clear error in the
Recommendations, they are adopted.
The Magistrate Judge also issued a Recommendation (#65) on Defendants’, Rick
Raemisch and Doug Roberts, Motion to Dismiss (#54). Mr. Tennyson sued these defendants in
both their official and individual capacities, contending that Mr. Raemisch and Mr. Roberts, who
serve as the CDOC Executive Director and the CDOC Medical Monitor, respectively, permitted
Eighth Amendment violations to be perpetrated against Mr. Tennyson though policies that
denied him sufficient funds to purchase medicine.
The Magistrate Judge recommended that Defendants’ Motion to Dismiss be granted in
part and denied in part. The Magistrate Judge recommended dismissal of the claims against Mr.
Raemisch and Mr. Roberts in their individual capacities, concluding that Mr. Tennyson failed to
allege any personal participation or plead an affirmative link between these supervisors’ policy
determinations and the violation as required to state an Eighth Amendment claim. As for the
claims against the Defendants in their official capacities, the Magistrate Judge concluded that
these are, in actuality, claims against the State of Colorado. Finding that the State of Colorado is
entitled to Eleventh Amendment immunity, the Magistrate recommended that Mr. Tennyson’s
claim, as he seeks monetary relief, be dismissed, but recommended that Mr. Tennyson be
permitted to proceed with a claim for injunctive relief.
Proper notice of the opportunity to object was given and no party timely filed any
objection to the Recommendation on Mr. Raemisch’s and Mr. Roberts’s Motion to Dismiss.
Finding no clear error, the Court adopts the Recommendation (#65).
The Court HEREBY ADOPTS the Recommendations of the Magistrate Judge (#64, 65,
66, and 67) which now become the Orders of the Court.
Dated this 24th day of February, 2016.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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