Huddleston v. State of Colorado et al

Filing 8

ORDER to Dismiss in Part and To Draw Case. ORDERED that the claims asserted against the State of Colorado, and against the Defendants in their official capacities, for monetary relief, are DISMISSED WITHOUT PREJUDICE as barred by Eleventh Amendment i mmunity. FURTHER ORDERED that the claims against Defendants Rick Raemisch, Jason Lengerich, Jeff Archambeau, Susan Tiona, Andrew Martinez, Chad Argys, Marshal Griffith, Tracy Coleman, Ed Mahala, Simon Denwalt, Christine Sturgeon, Nancy Davis, Norene Anderson, and Anthony Decesaro are DISMISSED WITH PREJUDICE as legally frivolous for Plaintiffs failure to allege the Defendants personal participation in the alleged denial of adequate medical care. FURTHER ORDERED that Plaintiffs remaining claims a gainst Defendants Douglas Roberts, Deborah Borrego, Meghan Reed, Betty Kaspar, Kerry Baroni and Cindy Nold, in their individual capacities, and in their official capacities for prospective injunctive relief, shall be drawn to a presiding judge and, if appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a), by Judge Lewis T. Babcock on 12/28/2015. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02537-GPG
DALE JUSTIN HUDDLESTON,
Plaintiff,
v.
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
Capacities,
JASON LENGERIGH, Warden, Buena Vista Correctional Facility, in His Official and
Individual Capacities,
DOUGLAS ROBERTS, B.V.C.F. Health Service Administrator, in His Official and
Individual Capacities,
MARSHALL GRIFFITH, B.V.C.F. Administrator, in His Official and Individual Capacities,
TRACY COLEMAN, B.V.C.F. Captain, in His Official and Individual Capacities,
ED MAHALA, C.D.O.C. Captain, B.V.C.F., in His Official and Individual Capacities,
SIMON 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
Capacities,
DEBORAH BORREGO, C.D.O.C. B.V.C.F. Medical, in Her Official and Individual
Capacities,
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,
NANCY DAVIS, BVCF Grievance Coordinator, In Her Official and Individual Capacities,
NORENE ANDERSON, BVCF Grievance Coordinator, 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
Individual Capacities.
Defendants.

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ORDER TO DISMISS IN PART AND TO DRAW CASE

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.
On November 30, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
Complaint and determined that it was deficient because the State of Colorado is entitled
to Eleventh Amendment immunity from suit and Plaintiff failed to allege specific facts to
show each Defendant’s personal participation in a deprivation of his Eighth Amendment
right to adequate medical care. (ECF No. 6). Magistrate Judge Gallagher ordered Mr.
Huddleston to file an Amended Complaint, on the court-approved Prisoner Complaint
form, within 30 days. (Id.).
On December 7, 2015, Mr. Huddleston filed an Amended Complaint. (ECF No.
7). The Amended Complaint is not on the court-approved form, as directed in the
November 30, 2015 Order. However, because the form used by Plaintiff follows a format
substantially similar to the Court’s Prisoner Complaint form, the Court will review the
pleading as submitted. Mr. Huddleston is reminded that the Local Rules 1.2 and 5.1(c) of
the Local Rules of Practice—Civil for this Court require litigants to use the Court-approved
forms found on the Court's website.
Mr. Huddleston has been granted leave to proceed pursuant to the in forma
pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must
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dismiss the action if Plaintiff’s claims are frivolous or malicious. 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). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at
any time an action that seeks monetary relief against a defendant who is immune from
such relief.
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, this
action will be dismissed in part, and the remainder drawn to a presiding judge and, if
applicable, to a magistrate judge.
I. The Amended 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, surgeries have been performed 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 11). Mr. Huddleston
alleges that he has not received any medical treatment for these conditions. He further
states that he is presently suffering from a slipped disk that is causing him severe pain
and loss of mobility. According to Plaintiff, one or more of the Defendants have denied
him steroid injections to reduce the swelling in his lower back, and have denied him a
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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. at
12). Plaintiff alleges that he is suffering from continuing spinal degeneration and chronic
pain. He asserts that the Defendants have acted with deliberate indifference to his
serious medical needs, in violation of the Eighth Amendment. Mr. Huddleston requests
monetary and prospective injunctive relief.
II. Analysis
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)
(unpublished).
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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
Mr. Huddleston fails to allege specific facts to show each Defendant’s personal
participation in the alleged Eighth Amendment violations.
Plaintiff was warned in the November 30 Order 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 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
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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’s allegations indicate that he is suing Defendants Raemisch and
Lengerich because of their supervisor authority over other CDOC staff. (ECF No. 7 at
4-5). Plaintiff’s allegations are insufficient to show that Defendants Raemisch and
Lengerich knew about, and were personally involved, in decisions concerning Plaintiff’s
medical care, or that either Defendant affirmatively denied Plaintiff a medically-prescribed
mattress. Plaintiff’s conclusory assertion that Defendant Lengerich “state[d] that it is
‘policy’ to not issue thicker mattresses” to inmates who are not housed in the incentive
unit (ECF No. 7 at 14), does not state facts to show that Defendant Lengerich knew that a
CDOC physician had prescribed a thicker mattress for Plaintiff’s medical condition, but
Lengerich personally interfered with Plaintiff’s receipt of the mattress. Conclusory
assertions of personal participation are inadequate to state an arguable claim for relief
under § 1983. See Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 191 (10th Cir.
Jan. 13, 2009) (unpublished) (holding complaint failed, “except for conclusory allegations,
sufficiently to allege the necessary direct personal participation” by former Executive
Director of CDOC in the claimed injury).
Mr. Huddleston’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 also conclusory and fail to show the
Defendants’ personal participation in the alleged violation of Plaintiff’s Eighth Amendment
rights.
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Furthermore, Plaintiff may not sue the non-medical provider Defendants (including
Defendants Lengerich, Argys, Griffith, Roberts, Coleman, Mahala, Denwalt, Sturgeon,
Davis, Anderson and Decesaro) solely on the basis that they denied Plaintiff’s grievances
or ignored Plaintiff’s correspondence complaining about the denial of a
medically-prescribed 6” mattress. 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, 307 F. App’x. at 193 (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 does not allege specific facts in the Amended Complaint to
demonstrate that Defendants Jason Lengerich, Chad Argys, Marshall Griffith, Tracy
Coleman, Ed Mahala, Simon Denwalt, Nancy Davis, Norene Anderson, and Anthony
Decesaro were personally involved in his decisions concerning his medical care at BVCF,
or that these Defendants personally prevented him from obtaining a medically-prescribed
mattress. As such, these Defendants are improper parties to this action and will be
dismissed.
And, finally, although Defendant Christine Sturgeon is alleged to be a “Medical
Physician’s Assistant” at BVCF, the only allegation against her in the Amended Complaint
is that she responded to Plaintiff’s Step 1 grievance by stating that Plaintiff “had violated
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D.O.C. Administrative Regulation 850-04 concerning duplicate grievances.” This
allegation does not demonstrate Defendant’s Sturgeon’s personal involvement in the
alleged denial of adequate medical care, or in the denial of a medically-prescribed
mattress.
The Court will not address at this time the merits of the Eighth Amendment claims
against Defendants Douglas Roberts, Deborah Borrego, Meghan Reed, Betty Kaspar,
Kerry Baroni and Cindy Nold, who are medical providers or medical administrators at
BVCF, for failure to comply with the surgeon’s recommendation and BVCF’s physician’s
order that he receive a thicker mattress. Instead, the action will be drawn to a presiding
judge and, if applicable, to a magistrate judge. See D.C.COLO.LCivR 8.1(c).
Accordingly, it is
ORDERED that the claims asserted against the State of Colorado, and against the
Defendants in their official capacities, for monetary relief, are DISMISSED WITHOUT
PREJUDICE as barred by Eleventh Amendment immunity. It is
FURTHER ORDERED that the claims against Defendants Rick Raemisch, Jason
Lengerich, Jeff Archambeau, Susan Tiona, Andrew Martinez, Chad Argys, Marshal
Griffith, Tracy Coleman, Ed Mahala, Simon Denwalt, Christine Sturgeon, Nancy Davis,
Norene Anderson, and Anthony Decesaro are DISMISSED WITH PREJUDICE as legally
frivolous for Plaintiff’s failure to allege the Defendants’ personal participation in the
alleged denial of adequate medical care. It is
FURTHER ORDERED that Plaintiff’s remaining claims against Defendants
Douglas Roberts, Deborah Borrego, Meghan Reed, Betty Kaspar, Kerry Baroni and
Cindy Nold, in their individual capacities, and in their official capacities for prospective
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injunctive relief, shall be drawn to a presiding judge and, if appropriate, to a magistrate
judge, pursuant to D.C.COLO.LCivR 40.1(a).
DATED December 28, 2015, at Denver, Colorado.
BY THE COURT:

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

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