Ellison v. Raemisch et al
AMENDED ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 1/30/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00026-GPG
DOCTOR BUTLER, Medical Dr., Sterling Correctional Facility, and
DR. RUDLOUSKAS, Medical Dr.,
AMENDED ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Erik Ellison, is a prisoner in the custody of the Colorado Department of
Corrections. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint
alleging his constitutional rights were violated. The Court must construe the Prisoner
Complaint liberally because Plaintiff 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 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
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 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). A
disagreement about medical care or medical negligence does not violate the Eighth
Amendment. See Estelle, 429 U.S. at 107. Mr. Ellison’s allegations tend to show that
Defendants were attempting to facilitate medical care for him B 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.
See id. at 104. 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 v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Mata v. Saiz, 427 F.3d
745, 753 (10th Cir. 2005)). “A medical need is sufficiently serious if it is one that 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 marks 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 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 837B38 (internal citations omitted).
Even assuming Plaintiff had a serious medical need, Plaintiff’s allegations fall far
short of establishing deliberate indifference C 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, 511 U.S. at 847.
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. at 837. “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).
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 “[t]he right to be free from cruel and unusual punishment does not
include the right to the treatment of one’s choice.” Layne v. Vinzant, 657 F.2d 468, 473
(1st Cir. 1981). In sum, there is no allegation that suggests any Defendant knew Plaintiff
faced a substantial risk of serious harm and disregarded that risk by failing to take
reasonable measures to abate it.
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 how
each 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
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
DATED January 30, 2016, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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