McKinney v. Colorado Department of Corrections et al
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 10/14/15. (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 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.
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 an amended complaint if he wishes to pursue his claims in this action.
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).
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.
It is not clear against which Defendant or Defendants Mr. McKinney is asserting
the medical treatment claims or what any particular Defendant did with respect to medical
treatment that violated Mr. McKinney’s constitutional rights. 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
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
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).
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, 104445 (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. 07-1400, 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 Amendment
Finally, because Mr. McKinney must clarify the claims he is asserting, he will be
directed to file an 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 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.
DATED October 14, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?