Gilmore v. Sicotte et al

Filing 5

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 4/14/15. Defendant Freemont Correctional Facility is dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00741-GPG
WILLIAM GILMORE,
Plaintiff,
v.
TRUDY SICOTTE, PA,
DAVID TESSIER, HCA, and
FREMONT CORRECTIONAL FACILITY
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff William Gilmore is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon
City, Colorado. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint
pursuant to 42 U.S.C. § 1983, and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff has been granted leave to proceed
pursuant to § 1915.
Plaintiff asserts that his constitutional rights have been violated because
Defendants Frank Cordova and George Santini have refused to treat his severe
allergies and provide him Benadryl and an EpiPen to counter any allergy attack.
Plaintiff further asserts that he has suffered Anaphylaxis shock three times in his life due
to his allergies and has been told that if he suffers a fourth episode his survival rate
without medication is only about twenty percent. Plaintiff seeks injunctive relief and
compensatory damages. These claims asserted against Defendants Cordova and

Santini will be drawn to a presiding judge and when applicable to a magistrate judge.
Plaintiff, however, may not sue the Federal Bureau of Prisons for damages in a
Bivens action. The United States has not waived sovereign immunity for itself or its
agencies under Bivens for constitutional tort claims. FDIC v. Meyer, 510 U.S. 471, 486
(1994); Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987). Any Bivens claims for
damages against the Bureau are barred by sovereign immunity. Furthermore, a request
for injunctive relief against BOP subordinate officials is not construed as a suit against
the BOP because an injunction against the named individuals would not be granted
against the BOP. See Jordan v. Sosa, 654 F.3d 1012, 1031 (10th Cir. 2011). The
BOP, therefore, will be dismissed. Accordingly, it is
ORDERED that Defendant Federal Bureau of Prisons will be dismissed from the
action. It is
FURTHER ORDERED that the claims asserted against Defendants Frank
Cordova and George Santini shall be drawn to a presiding judge and when applicable to
a magistrate judge.
DATED at Denver, Colorado, this 14th

day of

April

, 2015.

BY THE COURT:

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

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