Ellison v. Raemisch et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 1/12/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00026-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
Erik Ellison, No. 131005,
Plaintiff,
v.
RICK RAEMISCH, Executive Director of the Colorado Dept. of Corrections;
BUTLER, Medical Doctor; and
RUDDORSKAS, Medical Doctor,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Nathan Daniel Knuth is a prisoner in the custody of the Jefferson County
Detention Facility in Golden, Colorado. Plaintiff, acting pro se, initiated this action by
filing a Prisoner Complaint alleging that his constitutional rights were violated. Plaintiff
has been granted leave to proceed pursuant to 42 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff is a pro se
litigant. 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 a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be
ordered to file an Amended Complaint.
In his complaint, Plaintiff complains about medical malpractice and asserts that
doctors changed the dosage of his medication in order to stabilize his immune system.
The increased dosage of Trazadone resulted in dizziness, which led to a fall down some

stairs at the prison.
First, the Complaint is deficient because Mr. Ellison does not allege enough facts
to show an arguable violation of his Eighth Amendment rights. The Eighth Amendment
is violated when a prison medical provider acts with deliberate indifference to an
inmate’s serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotations omitted); see also Estelle v. Gamble, 429 U.S. 97, 104-06 (1976) (prison
officials may not be deliberately indifferent to the serious medical needs of inmates in
their custody). 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, 511 U.S. at 847. A
disagreement about medical care or medical negligence does not violate the Eighth
Amendment. Estelle, 429 U.S. at 107. Mr. Ellison’s allegations tend to show that
Defendants were attempting to facilitate medical care for him – not that they were
deliberately indifferent to his serious medical needs.
To state an Eighth Amendment violation in the context of medical treatment, an
inmate must demonstrate two elements: (1) he was suffering from a "serious medical
need," and (2) prison officials were deliberately indifferent to the serious medical need.
Gamble v. Estelle, 439 U.S. 97 (1978). The first showing requires the court objectively
to determine whether the medical need was "sufficiently serious." "[I]t is the harm
claimed by the prisoner that must be sufficiently serious to satisfy the objective
component, and not solely ‘the symptoms presented at the time the prison employee
has contact with the prisoner.' " Martinez, 563 F.3d at 1088 (quoting Mata v. Saiz, 427
F.3d 745, 753 (10th Cir. 2005)). "A medical need is sufficiently serious if it is one that
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has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor's attention."
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation omitted).
The second prong requires the court subjectively to determine whether the
officials acted with a sufficiently culpable state of mind. Noting that this subjective
standard lies "somewhere between the poles of negligence at the one end and purpose
or knowledge at the other," id. at 836, the Supreme Court clarified the appropriate
standard as follows.
We hold instead that a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference . This approach comports best with the text of the
Amendment as our cases have interpreted it. The Eighth Amendment does
not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual
"punishments." An act or omission unaccompanied by knowledge of a
significant risk of harm might well be something society wishes to discourage,
and if harm does result society might well wish to assure compensation. The
common law reflects such concerns when it imposes tort liability on a purely
objective basis. But an official's failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot
under our cases be condemned as the infliction of punishment.

Id. at 837–38.
Even assuming Plaintiff had a serious medical need, Plaintiff's allegations fall far
short of establishing deliberate indifference— i.e., that any Defendant acted with a
sufficiently culpable state of mind. To establish the subjective component, a plaintiff
must show that jail officials "knew he faced a substantial risk of harm and disregarded
that risk, by failing to take reasonable measures to abate it." Farmer v. Brennan, 511

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U.S. at 837. Specifically, a jail official "must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference." Id. "The question is: ‘were the symptoms such that a prison
employee knew the risk to the prisoner and chose (recklessly) to disregard it?' "
Martinez, 563 F.3d at 1089 (quoting Mata, 427 F.3d at 753.
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.
The Supreme Court explained the difference between negligence and constitutional
claims in Estelle v. Gamble, 429 U.S. 97, 104 (1976). In that case, the prisoner,
Gamble, was injured when a bale of cotton fell on him while he was unloading a truck.
He went to the unit hospital where a medical assistant checked him for a hernia and
sent him back to his cell. He returned to the hospital where he was given pain pills by
an inmate nurse and then was examined by a doctor. The following day, his injury was
diagnosed as a lower back strain; he was prescribed a pain reliever and a muscle
relaxant. Over the course of several weeks, Gamble was seen by several doctors who
prescribed various pain relievers and provided him with medical work excuses.
Ultimately, despite his protests that his back hurt as much as it had the first day,
medical staff certified Gamble to be capable of light work. During the next two months,
Gamble received a urinalysis, blood test, blood pressure measurement, and pain and
blood pressure medication. Subsequently, a medical assistant examined Gamble and
ordered him hospitalized for treatment of irregular cardiac rhythm.
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The Supreme Court held that Gamble's allegations failed to state a claim upon
which relief could be granted against the defendant, both in his capacity as a treating
physician and as the medical director of the Corrections Department.
Gamble was seen by medical personnel on 17 occasions spanning a
3–month period .... They treated his back injury, high blood pressure, and
heart problems. Gamble has disclaimed any objection to the treatment
provided for his high blood pressure and his heart problem; his complaint is
"based solely on the lack of diagnosis and inadequate treatment of his back
injury." The doctors diagnosed his injury as a lower back strain and treated
it with bed rest, muscle relaxants and pain relievers. Respondent contends
that more should have been done by way of diagnosis and treatment, and
suggests a number of options that were not pursued. The Court of Appeals
agreed, stating: "Certainly an x-ray of (Gamble's) lower back might have
been in order and other tests conducted that would have led to appropriate
diagnosis and treatment for the daily pain and suffering he was
experiencing." But the question whether an X-ray or additional diagnostic
techniques or forms of treatment is indicated is a classic example of a matter
for medical judgment. A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual punishment. At most it is
medical malpractice, and as such the proper forum is the state court under
the Texas Tort Claims Act.
Gamble, 429 U.S. at 107 (internal citations omitted) (emphasis added).
Like the prisoner in Gamble, Plaintiff at bar has failed to demonstrate that he
suffered a constitutional violation, a prerequisite for recovery under 42 U.S.C. § 1983.
While an intentional refusal to provide any medical treatment to an inmate
suffering from a serious medical need manifests deliberate indifference and is
actionable under the Eighth Amendment, the Constitution does not require that a
prisoner receive every medical treatment that he requests or that is available elsewhere.
A disagreement as to the appropriate choice of medical treatment does not give rise to
a constitutional violation because the "right to be free from cruel and unusual
punishment does not include the right to the treatment of one's choice." Layne v.

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Vinzant, 657 F.2d 468, 473 (1st Cir. 1981). “[I]njuries inflicted by governmental
negligence are not addressed by the United States Constitution.” Daniels v. Williams,
474 U.S. 327, 333 (1986).
In sum, there is no allegation that suggests that any Defendant knew that Plaintiff
faced a substantial risk of serious harm and disregarded that risk by failing to take
reasonable measures to abate it or that he had any reason to know that he faced any
substantial harm.
Moreover, Plaintiff also is required to assert personal participation by a named
defendant in the alleged constitutional violation. See Bennett v. Passic , 545 F.2d 1260,
1262-63 (10th Cir. 1976). To establish personal participation, Plaintiff must show in the
Cause of Action section of the complaint form how the named individual caused the
deprivation of a federal right. See 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).
As for claims against Defendant Rick Raemisch, 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). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for conduct “arising
from his or her superintendent responsibilities,” the plaintiff must plausibly
plead and eventually prove not only that the official’s subordinates violated
the Constitution, but that the official by virtue of his own conduct and state of
mind did so as well.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit against a government official for
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conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege
and demonstrate that: “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Id. at 1199. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff 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, to be used in filing the
Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order within the time allowed, this action will be dismissed without
prejudice.
DATED January 12, 2016, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
United States Magistrate Judge

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