McKinney v. Colorado Department of Corrections et al
ORDER TO DRAW IN PART AND TO DISMISS IN PART by Judge Lewis T. Babcock on 1/15/16. Defendants John Klein and Lisa Hanks are dismissed. (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;
T. LAURENCE, Physician Assistant;
JOHN KLEIN, Supervisor of AVCF Medical Clinic; and
LISA HANKS, Nurse,
ORDER TO DRAW IN PART AND TO DISMISS IN PART
Plaintiff Kevin L. McKinney is in the custody of the Colorado Department of
Corrections (CDOC) and currently is confined at the Arkansas Valley Correctional
Facility (AVCF). Acting pro se, he filed a Prisoner Complaint (ECF No. 1) pursuant to
42 U.S.C. § 1983 complaining about inadequate medical treatment. The second
amended complaint (ECF No. 13, docketed as “amended complaint”) is the operative
complaint. Plaintiff alleges that he has been denied hernia surgery based on a CDOC
policy that does not refer prisoners for hernia surgery. He has alleged he continuously
complained to medical providers since May of last year that his hernia was causing him
severe pain and discomfort and that the treatment provided, a hernia belt and
medications, were ineffective.
Specifically, Plaintiff asserts that he was examined by Physician Assistant T.
Lawrence on June 23, 2015 and July 2, 2015 and was informed on both occasions that
he had a direct inguinal hernia but that CDOC policy prohibited surgery as long as it
was reducible. He further claims that Defendant John Klein, supervisor of the AVCF
medical clinic, knew of his serious medical need and failed to take appropriate
measures to provide him with adequate medical care. Plaintiff asserts deliberate
indifference to his serious medical need in violation of the Eighth Amendment of the
U.S. Constitution. He seeks injunctive relief and money damages.
The Court must construe the Amended Complaint liberally because Plaintiff 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. For the reasons discussed
below, the Court will dismiss the Amended Complaint in part and order the case drawn
Mr. McKinney was informed that personal participation is an essential element in
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 constitutional violation and each defendant’s participation, control
or direction, or failure to supervise. See Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir.2009) (citations and quotations omitted); Dodds v. Richardson, 614 F.3d 1185,
1200-1201 (10th Cir. 2010). 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
In the Amended Complaint, Plaintiff alleges that Defendant Klein is the
supervisor of the AVCF medical clinic and that, by virtue of the denial of his grievance,
he was aware of Plaintiff’s serious medical need and failed to respond reasonably to it.
As the Court previously instructed Plaintiff, 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).
Moreover, nothing Plaintiff asserts against Defendant Klein, based on his
supervisory role, indicates that he violated the Constitution by virtue of his own conduct
and state of mind. Rather, Plaintiff claims that his decision was based on a CDOC
policy. Thus, he will be dismissed. See Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.
1990) (holding that, to establish supervisory liability in a § 1983 action, a plaintiff must
show that “a supervisory defendant, expressly or otherwise, authorized, supervised, or
participated in conduct which caused the constitutional deprivation”).
In addition, Defendants Klein and Hanks cannot be held liable under § 1983
solely on the basis that they denied Plaintiff’s grievances. The denial of a grievance,
without more, does not establish personal participation under § 1983. Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington v. Ortiz, 307 F.
App’x. 179, 193 (10th Cir. 2009) (stating that "the denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.")
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, 99 F.
App’x. 838, 843 (10th Cir. 2004) (sending "correspondence [to high-ranking prison
official] outlining [a] complaint . . . without more, does not sufficiently implicate the
[supervisory official] under § 1983"). Thus, Defendant Hanks also will be dismissed.
Accordingly, it is
ORDERED that Defendants John Klein and Lisa Hanks are dismissed from this
action. It is
FURTHER ORDERED that the claims asserted against the CDOC and
Defendant T. Lawrence shall be drawn to a presiding judge and if appropriate to a
DATED at Denver, Colorado, this
day of January, 2016.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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