Van Buskirk v. Colorado Department of Corrections

Filing 11

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/1/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02321-GPG
ROBERT CRAIG VAN BUSKIRK,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
RICK RAMISH, Executive Director of Colo. Dept. of Corrections,
MRS. BURTLOW, Acting Warden of Colorado Territorial Prison for 9-2015 to 12-2015
(September to December, 2015),
BRIAN HOFFMAN, Colo. Territorial Prisons Medical Administrator or Designee for
9-2015 to 12-2015,
MARY GABRIEL, Plaintiff’s Case Manager at Colo. Territorial Prison #14057,
ANITA NORMANDY, #18124, Medical Grievance Responder, and
DESTIN FOREE, #20127, Medical Grievance Responder,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Robert Craig Van Buskirk, is a prisoner in the custody of the Colorado
Department of Corrections (“DOC”). On January 5, 2016, Mr. Van Buskirk filed pro se a
Prisoner Complaint (ECF No. 6) asserting two federal constitutional claims pursuant to 42
U.S.C. § 1983 and a state law negligence claim. On January 7, 2016, Magistrate Judge
Gordon P. Gallagher ordered Mr. Van Buskirk to file an amended Prisoner Complaint that
clarifies the claims he is asserting. Magistrate Judge Gallagher specifically advised Mr.
Van Buskirk regarding the factual allegations necessary to support his constitutional
claims. Magistrate Judge Gallagher also warned Mr. Van Buskirk that the Court may
decline to exercise supplemental jurisdiction over his state law negligence claim if he

failed to allege sufficient facts to support a cognizable federal constitutional claim and
that, if he failed to file an amended Prisoner Complaint within thirty days, the action would
be dismissed without further notice. On February 19, 2016, Magistrate Judge Gallagher
entered a minute order granting Mr. Van Buskirk an extension of time until March 23,
2016, to file an amended Prisoner Complaint. Magistrate Judge Gallagher again warned
Mr. Van Buskirk that the action would be dismissed without further notice if he failed to file
an amended Prisoner Complaint within the time allowed. Despite these warnings, Mr.
Van Buskirk has not filed an amended Prisoner Complaint within the time allowed.
The Court must construe the Prisoner Complaint liberally because Mr. Van Buskirk
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). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id.
Mr. Van Buskirk has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Therefore, the Court must dismiss the Prisoner Complaint if the
claims are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). The Court will dismiss the action as legally frivolous.

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Mr. Van Buskirk asserts three claims for relief. He first claims his Eighth
Amendment right to be free from cruel and unusual punishment was violated when he
was denied adequate medical treatment from September 1, 2015, until October 29, 2015.
He contends in his second claim that his constitutional right to due process also was
violated because he was denied adequate medical treatment and that he was denied due
process because the prison grievance procedure is not adequate. As Magistrate Judge
Gallagher noted, the medical treatment potion of claim two must be construed as an
Eighth Amendment claim because “the Eighth Amendment . . . serves as the primary
source of substantive protection to convicted prisoners.” Whitley v. Albers, 475 U.S.
312, 327 (1986). Mr. Van Buskirk’s third claim is a state law negligence claim premised
on the same alleged denial of adequate medical treatment. He is suing Defendants in
both their individual and official capacities.
The Court first will address Mr. Van Buskirk’s constitutional claims asserted
against the DOC and the individual Defendants in their official capacities. Official
capacity suits “generally represent only another way of pleading an action against an
entity of which an officer is an agent.” Monell v. Department of Social Services, 436 U.S.
658, 690 n.55 (1978). Therefore, to the extent Mr. Van Buskirk is asserting claims
against Defendants in their official capacities, the claims must be construed as claims
against the DOC. However, the DOC, which is an agency of the State of Colorado, see
Colo. Rev. Stat. § 24-1-128.5, is protected by Eleventh Amendment immunity. See Will
v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). “It is well established that
absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an

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unmistakable abrogation of such immunity by Congress, the amendment provides
absolute immunity from suit in federal courts for states and their agencies.” Ramirez v.
Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The State of
Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841
F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of 42 U.S.C. § 1983
did not abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332,
340-345 (1979). Therefore, the claims for damages against the DOC and the individual
Defendants in their official capacities are legally frivolous and must be dismissed.
Mr. Van Buskirk’s Eighth Amendment claims against Defendants in their individual
capacities also lack merit because he fails to allege specific facts that demonstrate the
individual Defendants personally participated in the alleged denial of medical care. In
order to state an arguable Eighth Amendment claim Mr. Van Buskirk must allege facts
that demonstrate deliberate indifference to a serious medical need. See Estelle v.
Gamble, 429 U.S. 97, 104-06 (1976). “A claim of deliberate indifference includes both
an objective and a subjective component.” Al-Turki v. Robinson, 762 F.3d 1188, 1192
(10th Cir. 2014). “A medical need is considered sufficiently serious to satisfy the
objective prong if the condition has been diagnosed by a physician as mandating
treatment or is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Id. at 1192-93 (internal quotation marks omitted). To the extent
Mr. Van Buskirk’s Eighth Amendment claim is premised on a delay in providing adequate
medical care, he must allege specific facts that demonstrate the delay resulted in
substantial harm. See id. at 1193. “[T]he substantial harm caused by a delay in

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treatment may be a permanent physical injury, or it may be an intermediate injury, such as
the pain experienced while waiting for treatment and analgesics.” Id. (internal quotation
marks omitted). Under the subjective prong, ‘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).
As Magistrate Judge Gallagher advised Mr. Van Buskirk, “[i]ndividual liability under
§ 1983 must be based on personal involvement in the alleged constitutional violation.”
Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Thus, allegations of “personal
participation in the specific constitutional violation complained of [are] essential.” Henry
v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). 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).
Mr. Van Buskirk fails to allege specific facts that demonstrate the individual
Defendants personally participated in the alleged denial of adequate medical treatment.
He does not allege that any Defendant knew he faced a substantial risk of serious harm
and failed to take action to abate that risk. His vague and conclusory allegations that

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Defendants failed to ensure he received adequate medical care are not sufficient to
demonstrate they personally participated in any medical decisions pertinent to his
medical treatment. Therefore, the Eighth Amendment claim for damages asserted
against Defendants in their individual capacities also will be dismissed as legally
frivolous.
Mr. Van Buskirk’s due process claim premised on the alleged inadequacy of the
DOC grievance procedure also lacks merit because prisoners do not have a
constitutional right to a grievance procedure. See Boyd v. Werholtz, 443 F. App’x 331
(10th Cir. 2011) (affirming dismissal under 28 U.S.C. § 1915A of inmate’s claim based on
alleged denial of access to prison grievance procedure); see also Walters v. Corrs. Corp.
of Am., 119 F. App’x 190, 191 (10th Cir. 2004) (finding that an alleged denial of access to
administrative grievance procedure did not result in a constitutional violation).
Therefore, the due process claim also is legally frivolous and must be dismissed.
For these reasons, the constitutional claims will be dismissed. The Court declines
to exercise supplemental jurisdiction over the state law negligence claim because the
federal claims over which the Court has original jurisdiction will be dismissed. See 28
U.S.C. § 1367(c)(3).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
If Plaintiff files a notice of appeal he also must pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth

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Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Prisoner Complaint (ECF No. 6) and the action are dismissed
as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on
appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

1st

day of

April

, 2016.

BY THE COURT:

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

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