McKinney v. Colorado Department of Corrections et al
ORDER on Defendant's Motion to Dismiss 27 , by Magistrate Judge Michael J. Watanabe on 3/01/2016.(slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02269-MJW
KEVIN L. MCKINNEY,
COLORADO DEPARTMENT OF CORRECTIONS, and
ORDER ON DEFENDANTS’ MOTION TO DISMISS (Docket No. 27)
MICHAEL J. WATANABE
United States Magistrate Judge
Plaintiff brings this suit against medical providers at the Colorado Department of
Corrections (“CDOC”). Defendants have moved to dismiss. (Docket No. 27.) Plaintiff
filed a brief response. (Docket No. 30.) The Court has reviewed the parties’ filings,
taken judicial notice of the Court’s entire file in this case, and considered the applicable
Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the
Court grants the motion and dismisses this case without prejudice.
Facts as Alleged in the Second Amended Complaint
Plaintiff has a direct inguinal hernia. (Docket No. 13, p.7.) He contacted prison
medical facilities about his pain on May 28, 2015; June 8, 2015; and June 12, 2015. (Id.
at 5.) He received no response until June 14, 2015—a full 17 days after his initial
complaint. (Id.) He was examined by Defendant Laurence on June 23, 2015 and again
on July 2, 2015. (Id. at 7.) Defendant Laurence diagnosed the hernia, but explained
that it is reducible—and that prison policy is to provide a hernia belt and pain
medication, rather than surgery, when a hernia is reducible. (Id.)
Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). As stated by then-Chief Judge Babcock in 2001:
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of
jurisdiction over the subject matter. As courts of limited jurisdiction,
federal courts may only adjudicate cases that the Constitution and
Congress have granted them authority to hear. Statutes conferring
jurisdiction on federal courts are to be strictly construed. A Rule 12(b)(1)
motion to dismiss must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.
The burden of establishing subject matter jurisdiction is on the party
. . . [I]f a party attacks the facial sufficiency of the complaint, the
court must accept the allegations of the complaint as true.
Cherry Creek Card & Party Shop, Inc. v. Hallmark Mktg. Corp., 176 F. Supp. 2d 1091,
1094–95 (D. Colo. 2001) (internal citations, quotation marks, and alterations omitted).
The Tenth Circuit has recently explained the standards under Rule 12(b)(6):
. . . To withstand a Rule 12(b)(6) motion to dismiss, a complaint
must contain enough allegations of fact, taken as true, to state a claim to
relief that is plausible on its face. Disregarding conclusory statements, the
remaining factual allegations must plausibly suggest the defendant is
liable. A claim for relief is plausible when the plaintiff pleads facts
adequate to draw a reasonable inference that the defendant is liable for
the alleged misconduct. Such facts must raise a right to relief above the
McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014) (internal citations, quotation
marks, and alterations omitted).
Defendants argue that Plaintiff may not seek damages from Defendant Laurence
in his official, as opposed to individual, capacity. See Hafer v. Melo, 502 U.S. 21, 25-26
(1991). This is true; to the extent Plaintiff seeks damages against Defendant Laurence
in his official capacity, such claims are hereby dismissed. The Eleventh Amendment
does not, however, provide any defense for Defendant Laurence in his official capacity
as to injunctive relief. Id. at 30-31 (discussing Ex parte Young, 209 U.S. 123 (1908)).
The standard for inadequate medical care under the Eighth Amendment is
“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104
(1976). The test is both objective and subjective: a prisoner must establish that he was
deprived of a medical need that is, objectively, “sufficiently serious,” Farmer v. Brennan,
511 U.S. 825, 834 (1994), and that the defendant subjectively knew of and disregarded
“an excessive risk to [the prisoner’s] health and safety,” id. at 837.
Defendants concede the objective component for purposes of their motion to
dismiss, arguing that Defendants have exercised appropriate medical judgment and that
Plaintiff is not entitled to his choice of treatment. See, e.g., Gee v. Pacheco, 627 F.3d
1178, 1192 (10th Cir. 2010) (“Disagreement with a doctor's particular method of
treatment, without more, does not rise to the level of an Eighth Amendment violation.”).
Defendants are correct. Courts have repeatedly held that prisons may treat
minor hernias with non-surgical alternatives. Where prison officials take actions to
address hernias—providing trusses or hernia belts, prescribing pain medication,
forwarding the case for surgery review, putting the prisoner on work restrictions, etc.—
courts uniformly hold that the prisoner fails to state a claim, even if the prisoner would
have preferred a more expeditious corrective surgery. See, e.g., Karsten v. Camacho,
P.A., ___ F. App’x ___, 2014 WL 7181240, at *2 (10th Cir. Dec. 18, 2014) (defendant
provided hernia belt, referred case for higher review, did not prescribe pain medication
due to plaintiff’s liver condition); Sherman v. Klenke, ___ F. Supp. 3d ___, 2014 WL
4436628, at *13 (D. Colo. Sept. 9, 2014) (defendant saw plaintiff on 13 occasions,
prescribed various medications and a truss, and imposed work restrictions); Bowen v.
Treiber, 492 F. Supp. 2d 1206, 1213 (E.D. Cal. 2006) (defendant provided hernia belt,
imposed work restrictions, and recommended surgery); see also Plummer v.
McDermott, No. 15-1131, 2015 WL 6075837, at *2 (10th Cir. Oct. 15, 2015) (six-month
delay in surgery).
By contrast, where prison officials fail to take any action despite notice of a
hernia, or fail to take any reasonably adequate action, courts routinely hold that the
plaintiff has stated a claim. See, e.g., Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.
2012) (surgery prescribed but delayed over a year without any explanation); Gonzalez
v. Feinerman, 663 F.3d 311, 313 (7th Cir. 2011) (worsening symptoms untreated for
nearly two years); Delker v. Maass, 843 F. Supp. 1390 (D. Ore. 1994) (defendant
deliberately withheld surgery for legal rather than medical reasons); Johnson v.
Lockhart, 941 F.2d 705, 706–07 (8th Cir. 1991) (surgery delayed ten months despite
recommendation that surgery “should be provided immediately and should not be
delayed more than several days”).
Here, there are no allegations from which it can be inferred that Defendant
Laurence has ignored Plaintiff’s hernia or otherwise been reckless of a known risk of
harm. The most that can be said is that Plaintiff would prefer corrective surgery rather
than palliative treatment. This does not constitute deliberate indifference by Defendant
Laurence, nor by CDOC more broadly, and it therefore does not rise to the level of a
It is hereby ORDERED that:
Defendants’ Motion to Dismiss (Docket No. 27) is GRANTED;
Plaintiff’s Second Amended Complaint (Docket No. 12) is DISMISSED
WITHOUT PREJUDICE; and
The Status Conference set for March 7, 2016, at 9:30 a.m. is VACATED.
March 1, 2016
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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