McKinney v. Colorado Department of Corrections et al
ORDER DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/3/15. 8 Motion and Affidavit for Leave to Proceed Under 28 U.S.C. 1915 and 9 Motion for Request to Docket Complaint are denied as moot. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-2269-GPG
KEVIN L. MCKINNEY; Inmate No. 66506,
COLORADO DEPARTMENT OF CORRECTIONS;
ANTHONY A. DeCESARO, Grievance Officer;
LAURENCE, Physician Assistant;
JOHN KLEIN, Grievance Responder (11160); and
LISA HANKS, Grievance Responder (15936),
ORDER DIRECTING PLAINTIFF TO FILE A SECOND AMENDED COMPLAINT
Plaintiff, Kevin L. McKinney, is a prisoner in the custody of the Arkansas Valley
Correctional Facility in Ordway, Colorado. Mr. McKinney initiated this action by filing a
complaint claiming that he has been denied adequate medical care. On October 14,
2015, Magistrate Judge Gordon P. Gallagher ordered Plaintiff to file an amended
complaint that complies with the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure. Magistrate Judge Gallagher provided specific and detailed
instructions to Mr. Jewainat regarding the pleading requirements of Rule 8 and the
factual allegations necessary to support the claims he is asserting. On November 12,
2015, Mr. McKinney filed an Amended Complaint (ECF No. 7).
The court must construe the complaint liberally because Mr. McKinney 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 be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Mr. McKinney will be
ordered to file a second amended complaint if he wishes to pursue his claims in this
As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has
determined that the complaint is deficient. The complaint is deficient because it does
not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. The twin purposes of a complaint are to give the opposing parties fair notice
of the basis for the claims against them so that they may respond and to allow the court
to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See
Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of
Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of Fed. R. Civ. P. 8
are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN,
Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain
statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and
(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Mr. McKinney asserts jurisdiction pursuant to 42 U.S.C. § 1983, which “provides
a federal cause of action against any person who, acting under color of state law,
deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999).
Construing the complaint liberally, it appears that Mr. McKinney is asserting a
constitutional claim pursuant to both the Eighth and Fourteenth Amendments alleging
he has been denied adequate medical treatment in that he suffers from a hernia and
has been denied surgery and pain medication.
In order to state an arguable medical treatment claim Mr. McKinney must allege
specific facts that demonstrate deliberate indifference to his serious medical needs.
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. Brennan, 511 U.S. 825, 847 (1994). The "deliberate indifference"
standard for purposes of liability under section 1983 is a stringent standard of fault
requiring proof that a defendant disregarded a known or obvious consequence of his
action. Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 410
(1997). The defendant must be both aware of facts from which the inference could be
drawn that a substantial harm exists and he must also draw the inference. Farmer, 511
U.S. at 837. An official is not deliberately indifferent if "he fails to alleviate a significant
risk that he should have identified." Id. Moreover, 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.
Moreover, correctional defendants who are not themselves physicians cannot "be
considered deliberately indifferent simply because they failed to respond directly to the
medical complaints of a prisoner who was already being treated by the prison doctor."
Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.1993). "If a prisoner is under the care of
medical experts ..., a non-medical prison official will generally be justified in believing
that the prisoner is in capable hands." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
Thus, absent a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner, a non-medical prison official will
not be chargeable with the Eighth Amendment scienter requirement of deliberate
indifference. Id. See also Hernandez v. Keane, 341 F.3d 137, 148 (2d Cir. 2003) (no
deliberate indifference on part of grievance reviewer who delegated responsibility for
investigating inmate's complaints about his medical needs to other prison staff).
Because Plaintiff alleges that Defendants DeCeasaro, Klein and Hanks merely reviewed
and responded to his grievances, his allegations fail to state a claim against these
parties under the Eighth Amendment.
Nor does he state a claim under the Fourteenth Amendment against these
parties. Inmates do not have an independent constitutional right to administrative
grievance procedures. See Boyd v. Werholtz, Civil No. 10–3284, 2011 WL 4537783, at
*1 (10th Cir. Oct. 3, 2011) (unpublished opinion). "Nor does the state's voluntary
provision of an administrative grievance process create a liberty interest in that
process." Id. (citing Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011)
(observing that inmates have no constitutionally-protected liberty interest in access to
prison grievance procedure); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993) (per curiam) (finding that "[a] prison grievance procedure is a procedural right
only, it does not confer any substantive right upon the inmates. Hence, it does not give
rise to a protected liberty interest .... " (quotation and brackets omitted)). Since there is
no constitutional right to a grievance procedure, it follows that failure to comply with any
time restraints imposed under such grievance procedure does not give rise to a
cognizable constitutional rights claim. Instead, "[w]hen the claim underlying the
administrative grievance involves a constitutional right, the prisoner's right to petition the
government for redress is the right of access to the courts, which is not compromised by
the prison's refusal to entertain his grievances." Boyd, 2007 WL 4537783 at *1 (quoting
Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).
In summary, Mr. McKinney must identify the specific claims he is asserting, the
specific factual allegations that support each claim, against which Defendant or
Defendants he is asserting each claim, and what each Defendant did that allegedly
violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007) (noting that, to state a claim in federal court, “a complaint must explain
what each defendant did to him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes the defendant violated”) (emphasis added). Furthermore, the general rule
that pro se pleadings must be construed liberally has limits and “the court cannot take
on the responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Finally, “[i]t is sufficient, and indeed all that is permissible, if the
complaint concisely states facts upon which relief can be granted upon any legally
sustainable basis.” New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883
(10th Cir. 1957).
To the extent Mr. McKinney asserts a constitutional claim against an individual,
he must allege specific facts that demonstrate how that individual personally
participated in the asserted constitutional violation. See Henry v. Storey, 658 F.3d
1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the specific
constitutional violation complained of [are] essential”). Furthermore, a defendant may
not be held liable for the unconstitutional conduct of his or her subordinates on a theory
of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Although a
defendant can be liable in a § 1983 action based on his or her supervisory
responsibilities, a claim of supervisory liability must be supported by allegations that
demonstrate personal involvement, a causal connection to the constitutional violation,
and a culpable state of mind. See Schneider v. City of Grand Junction Police Dept.,
717 F.3d 760, 767-69 (10th Cir. 2013) (discussing standards for supervisory liability).
Thus, Plaintiff’s claims against Defendant Raemisch fail to state a claim.
Moreover, Plaintiff has named the Colorado Department of Corrections (CDOC),
which is considered an arm of the state of Colorado and claims against it are construed
against the State of Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that
claims asserted against government officials in their official capacities are construed
against the governmental entity). The State and its agencies are entitled to Eleventh
Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d
1512, 1525 (10th Cir. 1988) (the immunity conferred by the Eleventh Amendment
extends to the state and its instrumentalities); Steadfast Ins. Co. v. Agricultural Ins. Co.,
507 F.3d 1250, 1256 (10th Cir. 2007) (recognizing that agency of the state is entitled to
Eleventh Amendment immunity). Congress did not abrogate Eleventh Amendment
immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor has the
CDOC expressly waived its sovereign immunity. See Griess v. Colorado, 841 F.2d
1042, 1044-45 (10th Cir. 1988). The Eleventh Amendment prohibits suit against a state
entity, regardless of the relief sought. See Higganbotham v. Okla. Transp. Com'n, 328
F.3d 638, 644 (10th Cir. 2003); see also Hunt v. Colorado Dep’t of Corrections, No. 071400, 271 F. App’x 778, 780-81 (10th Cir. March 28, 2008) (unpublished). Accordingly,
Mr. McKinney cannot obtain a judgment for damages against the individual Defendants,
sued in their official capacities. Nor can he obtain a judgement for damages against the
CDOC. However, to the extent the Complaint asserts a cognizable claim for relief under
§ 1983, Plaintiff is not precluded from seeking prospective injunctive relief. See Ex
Parte Young, 209 U.S. 123 (1908); see also Branson Sch. Dist. RE–82 v. Romer, 161
F.3d 619, 631 (10th Cir.1998) (“[A] suit against a state official in his or her official
capacity seeking prospective injunctive relief is not . . . against the state for Eleventh
Finally, because Mr. McKinney must clarify the claims he is asserting, he will be
directed to file a second amended complaint on the complaint form approved for use by
prisoners in the District of Colorado. Pursuant to Rule 5.1(c) of the Local Rules of
Practice of the United States District Court for the District of Colorado – Civil, “[i]f not
filed electronically, an unrepresented prisoner or party shall use the procedures, forms,
and instructions posted on the court’s website.” Accordingly, it is
ORDERED that Mr. McKinney file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Mckinney attach as exhibits copies of all
grievances and responses thereto for each and every level of review for all claims he is
raising in this action. It is
FURTHER ORDERED that Mr. McKinney shall obtain the court-approved
Prisoner Complaint form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. McKinney fails to file an amended complaint
that complies with this order within the time allowed, the claims that do not comply with
the pleading requirements of Rule 8 will be dismissed without further notice. It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed Under
28 U.S.C. 1915 (ECF No. 8) is DENIED as moot. Plaintiff has already been granted IFP
status. It is
FURTHER ORDERED that the Motion for Request to Docket Complaint (ECF
No. 9) is DENIED as moot. The Amended Complaint was docketed as ECF No. 7.
DATED December 3, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge
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