Huddleston v. State of Colorado et al
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 11/30/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02537-GPG
DALE JUSTIN HUDDLESTON,
STATE OF COLORADO,
ANDREW MARTINEZ, D.O.C. Officer, in His Official and Individual Capacities,
SUSAN TIONA, D.O.C. Chief Medical Officer, in Her Official and Individual Capacities,
JEFF ARCHAMBEAU, C.E.O. Correctional Health Partners, in His Official and Individual
JASON LENGERIGH, Warden, Buena Vista Correctional Facility, in His Official and
CHAD ARGYS, B.V.C.F. Administrator, in His Official and Individual Capacities,
DOUGLAS ROBERTS, B.V.C.F. Health Service Administrator, in His Official and
MARSHALL GRIFFITH, B.V.C.F. Administrator, in His Official and Individual Capacities,
COLEMAN, B.V.C.F. Captain, in His Official and Individual Capacities,
TRACY COLEMAN, B.V.C.F. Executive Officer, in His Official and Individual Capacities,
ED MAHALA, C.D.O.C. Captain, B.V.C.F., in His Official and Individual Capacities,
DENWALT, B.V.C.F. Head Case Manager, in His Official and Individual Capacities,
CHRISTINE STURGEON, B.V.C.F. Medical P.A., In Her Official and Individual
DEBORAH BORREGO, C.D.O.C. B.V.C.F. Medical, in Her Official and Individual
MEGHAN REED, B.V.C.F. Medical Provider, in Her Official and Individual Capacities,
BETTY KASPAR, B.V.C.F. Medical Employee, in Her Official and Individual Capacities,
KERRY BARONI, B.V.C.F. Medical Provider, Health Service Administrator, in Her Official
and Individual Capacities,
CINDY NOLD, B.V.C.F. Medical Provider, in Her Official and Individual Capacities,
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, in His
Official and Individual Capacities, and
ANTHONY DECESARO, C.D.O.C. Step III Grievance Officer, in His Official and
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Dale Justin Huddleston, is in the custody of the Colorado Department of
Corrections (CDOC) at the Correctional Facility in Buena Vista, Colorado (BVCF). He
has filed pro se a Complaint (ECF No. 1), asserting a deprivation of his constitutional
rights pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Mr. Huddleston has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Huddleston’s filings liberally because he 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. The Court has reviewed the
Complaint and has determined that it is deficient. For the reasons discussed below,
Plaintiff will be directed to file an Amended Complaint, on the court-approved Prisoner
I. The Complaint
Plaintiff alleges that during his 15-year incarceration, he has developed a severe
degenerative condition of the spinal column, joints and ligaments. While in CDOC
custody, he has had surgeries on his spine, knee and ankle. In 2013, an x-ray and MRI
revealed “bulging disks between the L3-L4 and L4-L5 vertebra indicating ‘spinal canal
narrowing’ and ‘nerve root compression.’” (ECF No. 1 at 4). Mr. Huddleston alleges
that he has not received any medical treatment for these conditions. He is presently
suffering from severe pain, further spinal degeneration, and loss of mobility. Plaintiff
states that Defendants have denied him steroid injections to reduce the swelling in his
lower back, and have denied him a thicker mattress to alleviate the pressure on his spine,
both of which were recommended by the operating surgeon in April 2014, and ordered by
the attending CDOC physician. He alleges that Defendants have denied him a thicker
mattress, even though there are several available at the facility. He further states that he
has not been given a more recent MRI or any physical therapy. Instead, he has been
prescribed “a multitude of pain medications to suppress the symptoms but no treatment to
address the problem.” (Id.). Mr. Huddleston asserts that the Defendants have acted
with deliberate indifference to his serious medical needs, in violation of the Eighth
Amendment. He requests monetary and injunctive relief.
A. Eleventh Amendment
Plaintiff’s claims against the State of Colorado are barred by the Eleventh
Amendment, absent a waiver. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th
Cir.1988); 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);
Congress did not abrogate Eleventh Amendment immunity through § 1983, see Quern v.
Jordan, 440 U.S. 332, 345 (1979), nor has Colorado expressly waived its sovereign
immunity. See Griess, 841 F.2d at 1044-45. The Eleventh Amendment prohibits suit
against a state, 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)
Mr. Huddleston states that he is suing the Defendants in both their official and
individual capacities. (ECF No. 1 at 19). Claims against state officials in their official
capacities for monetary damages are construed as claims asserted against the State of
Colorado, see Hafer v. Melo, 502 U.S. 21, 25 (1991), and are barred by the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159, 169-70 (1985). However, to the
extent the Complaint asserts a cognizable claim for relief under § 1983, Plaintiff is not
precluded from seeking prospective injunctive relief against the individual Defendants in
their official capacities. 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 purposes.”).
B. Personal Participation
The Complaint is deficient because Plaintiff fails to allege specific facts to show
each Defendant’s personal participation in the alleged Eighth Amendment violations.
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
Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993); see also Dodds v.
Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010) (“[D]efendant-supervisors may
be liable under § 1983 where an ‘affirmative’ link exists between the unconstitutional acts
by their subordinates and their ‘adoption of any plan or policy. . .–express or otherwise–
showing their authorization or approval of such ‘misconduct.’”) (quoting Rizzo v. Goode,
423 U.S. 362, 371 (1976)). A supervisor defendant is not subject to liability under § 1983
on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Mr. Huddleston sues Defendants Raemisch and Lengerich because of their
supervisor authority over other CDOC staff. (ECF No. 1 at 10). However, Plaintiff’s
allegations are insufficient to show that the Defendants knew about, and were personally
involved, in decisions concerning Plaintiff’s medical care. Plaintiff’s allegations against
Defendants Archambeau, the CEO of Correctional Health Partners, Susan Tiona, the
CDOC Chief Medical Officer, and Andrew Martinez, the former CDOC chief medical
officer, are deficient for the same reason.
Furthermore, Plaintiff may not sue Defendant Lengerich or any other non-medical
provider Defendant (such as Defendants Argys, Griffith, Roberts, Captain Coleman,
Tracy Coleman, Mahala, Denwalt, and Decesaro) solely on the basis that they denied
Plaintiff’s grievances or ignored Plaintiff’s correspondence complaining about the denial
of adequate medical care. The "denial of a grievance, by itself without any connection to
the violation of constitutional rights alleged by plaintiff, does not establish personal
participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009);
see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193 (10th Cir. Jan. 13,
2009) (unpublished) (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, No. 02-1486, 99
F. App’x. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending "correspondence [to
high-ranking prison official] outlining [a] complaint . . . without more, does not sufficiently
implicate the [supervisory official] under § 1983").
Mr. Huddleston’s allegations that Defendants Roberts, Sturgeon, Borrego, Reed,
Kaspar, Baroni and Nold failed to comply with the surgeon’s recommendation and
BVCF’s physician’s order that he receive a thicker mattress may state an arguable Eighth
Amendment claim. See, e.g., Rutherford v. Medical Dept. of Dept. of Corrections, No.
02-1279, 76 F. App’x 893, 902 (10th Cir. Sept. 24, 2003) (unpublished). However, it is
unclear what authority each of the Defendants had to provide Plaintiff with the thicker
mattress, and whether each of the Defendants were personally involved in the other
allegations concerning the lack of adequate medical care at BVCF.
To state an arguable Eighth Amendment claim, Mr. Huddleston must allege
specific facts to show that each named Defendant acted with deliberate indifference to his
serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v.
Gamble, 429 U.S. 97, 104 (1976). To that end, Plaintiff must explain, clearly and
concisely, “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.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir.2007). Accordingly, it is
ORDERED that Plaintiff, Dale Justin Huddleston, file within thirty (30) days from
the date of this order, an Amended Complaint, on the Court-approved Prisoner
Complaint form, that complies with the directives in this order. It is
FURTHER ORDERED that Mr. Huddleston shall obtain the court-approved
Prisoner Complaint form (with the assistance of his case manager or facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Huddleston fails to file an Amended Complaint
on the Court-approved within the time allowed, some or all of this action may be
dismissed without further notice.
DATED November 30, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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