Reneau v. Fauvel et al

Filing 50

ORDER granting 33 Motion to Dismiss; adopting Report and Recommendations re 41 48 ; denying 46 Motion for Leave as moot by Chief Judge Marcia S. Krieger on 3/6/17. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-00039-MSK-MJW
CHESTER LEE RENEAU,
Plaintiff,
v.
DOCTOR MAURICE FAUVEL, in his individual capacity;
DOCTOR HELENE CHRISTNER, in both her individual and official capacities;
JAMIE SOUCIE, Director of Clinical Services at Sterling Correctional Facility, in both her
individual and office capacities; and
JOHN/JANE DOES, in both their individual and official capacities,
Defendants.
______________________________________________________________________________
OPINION AND ORDER OVERRULING OBJECTIONS AND
GRANTING MOTION TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to Mr. Reneau’s Objections (# 43) to
the Magistrate Judge’s May 31, 2016 Recommendation (# 41) that the Defendants’ Motion to
Dismiss (# 33) be granted, and the Defendants’ response (# 44); and Mr. Reneau’s Objections (#
49) to the Magistrate Judge’s August 23, 2016 Recommendation (# 48) that Mr. Reneau’s
Motion for Leave to Amend (# 46) be denied.
Mr. Reneau’s pro se1 Amended Complaint (# 7) recites that he is an inmate in the
custody of the Colorado Department of Corrections (“CDOC”), housed at the Sterling
Correctional Facility. Mr. Reneau states that, due to a series of pre-incarceration injuries, he

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Given Mr. Reneau’s pro se status, the Court liberally construes his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972).
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suffers from constant back pain. Upon his arrival at Sterling in February 2012, he requested (and
was apparently granted) pain management treatment from the facility’s medical staff.
In June 2012, Defendant Fauvel, a member of CDOC’s medical staff, ordered x-rays to
be taken of Mr. Reneau’s back. In July 2012, Dr. Fauvel requested that Mr. Reneau undergo a
further MRI examination of his back. However, Mr. Reneau alleges that Defendant Soucie,
along with a Doe Defendant (whom Mr. Reneau now identifies as Dr. Jennifer Mix), denied
authorization for the MRI examination. On several occasions, Mr. Reneau asked Dr. Fauvel to
pursue an appeal of the denial, but Dr. Fauvel refused.
Certain exhibits that Mr. Reneau attached to his original Complaint and refers to
expressly in the Amended Complaint shed some additional light on these events. A September
2012 note from Dr. Fauvel indicates that Dr. Fauvel wished to review Mr. Reneau’s medical
records from his pre-incarceration treatment, and “will hold off appeal for MRI until we get
previous records.” Mr. Reneau also points to a December 2013 grievance he filed against Dr.
Fauvel over the refusal to appeal the denial of authorization for the MRI examination. In that
grievance, Mr. Reneau recites that Dr. Fauvel “told me he was not going to resubmit a request
for an MRI until he could see more degeneration and a loss of muscle strength in my back and
my legs.” Dr. Fauvel responded to this grievance by stating “MRI was denied due to lack of
physical evidence of nerve involvement. I agree with [this] decision. . . You have [various
prescriptions for pain management], lumbar support, and weight restriction – this will have to
do.” Mr. Reneau appealed the denial of that grievance, but Ms. Soucie upheld the denial, stating
“following a review of your medical records, it appears you have received appropriate medical
care through SCF medical. . . Please continue to work with your medical provider on a treatment
plan that will meet your medical needs.”

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In October 2014, Defendant Christner took over Mr. Reneau’s medical care from Dr.
Fauvel. Mr. Reneau requested that Dr. Christner re-submit a request for authorization for an
MRI examination, but Dr. Christner refused.
Based on these facts, Mr. Reneau asserts a single claim under 42 U.S.C. § 1983 against
each of the named Defendants, contending that they manifested deliberate indifference to his
serious medical needs in violation of the 8th Amendment to the U.S. Constitution.
The Defendants moved (# 33) to dismiss Mr. Reneau’s claims, arguing: (i) they were
entitled to sovereign immunity for Mr. Reneau’s claims for damages against them in their
official capacities; (ii) the claims against Dr. Fauvel arising from his refusal to pursue the MRI
examination in 2012 are barred by the two-year statute of limitations, as Mr. Reneau did not
commence this action until January 7, 2016; (iii) Mr. Reneau failed to allege the personal
participation of Ms. Soucie in any deprivation other than her upholding of the denial of Mr.
Reneau’s grievance against Dr. Fauvel; (iv) Mr. Reneau fails to state a claim for deliberate
indifference, in part because he has merely disagreed with the treatment regimen the Defendants
have chosen for him; and (v) that the Defendants are entitled to qualified immunity.
The Court referred the matter to the Magistrate Judge for a recommendation. On My 31,
2016, the Magistrate Judge recommended (# 41) that the Defendants’ motion to dismiss be
granted. Specifically, the Magistrate Judge found that: (i) all claims against Dr. Fauvel were
untimely and that the statute of limitations was not tolled by the continuing violation doctrine;
and (ii) Mr. Reneau failed to state a claim for deliberate indifference because, at best, he alleged
only “a difference of opinion with [or among] medical staff.” Citing Toler v. Troutt, 631
Fed.Appx. 545, 547-48 (10th Cir. 2015).

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Mr. Reneau filed timely Objections (# 43), arguing: (i) the Magistrate Judge erred in
finding that the continuing violation toll to the statute of limitations did not apply; and (ii) that
with regard to the sufficiency of his pleading, the Magistrate Judge “misconstru[ed]” his
complaint, which concerns not the particular denial of an MRI exam, but rather, “the act of
denying Plaintiff access to medical personnel capable of evaluating the need for treatment on
Plaintiff’s spinal cord,” for which the MRI exam was merely a first step.
Thereafter, Mr. Reneau moved to amend (# 46) his Amended Complaint to replace the
Doe Defendant with Dr. Mix. Mr. Reneau tendered a proposed Second Amended Complaint that
specifically named Dr. Mix and modified, to some extent, his factual allegations, but did not
make any fundamental changes to the facts recited above. The Court referred this motion to the
Magistrate Judge for a recommendation, and on August 23, 2016, the Magistrate Judge
recommended (# 48) that Mr. Reneau’s motion be denied because the proposed claims being
asserted against Dr. Mix were defective for the reasons previously stated, such that amendment
would be futile. Mr. Reneau filed timely Objections (# 49) that do not directly address the
Magistrate Judge’s findings of futility with regard to Dr. Mix, but which largely restate Mr.
Reneau’s Objections to the prior recommendation.
Pursuant to Fed. R. Civ. P. 72(b), the Court reviews the objected-to portions of a
Recommendation de novo. Upon such de novo review, the Court agrees with the Magistrate
Judge’s findings and reasoning in all respects in both Recommendations. In particular, the Court
agrees that Mr. Reneau’s claims against Dr. Fauvel are untimely, and the Court rejects Mr.
Reneau’s argument that the continuing violation doctrine suffices to toll the statute of limitations.
The 10th Circuit has expressly stated that it has never adopted the continuing violation doctrine in
the § 1983 context. See Gosselin v. Kaufman, 656 Fed.Appx. 916, 919 (10th Cir. 2016). As

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applied to claims that arise from discrete decisions or refusals to act, the continuing violations
doctrine has been falling out of favor since National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113-14 (2002) (stating that such tolling doctrines are “to be applied sparingly”), and this
Court sees no reason to revive it. The sole authority Mr. Reneau cites with regard in support of
the doctrine, Heard v. Sheahan, 253 F.3d 316, 320 (7th Cir. 2001), predates the Supreme Court’s
Morgan decision weakening the doctrine, and thus, is unpersusive. Accordingly, the Court
agrees with the Magistrate Judge that the claims against Dr. Fauvel are untimely.
The Court also agrees with the Magistrate Judge that Mr. Reneau’s allegations against all
Defendants generally fail to state a claim for deliberate indifference. Whether Mr. Reneau’s
claims are viewed as a challenge to the decision to deny an MRI exam itself, or whether the
denial of the MRI exam is viewed as denying Mr. Reneau the ability to then have those MRI
results reviewed by specialists who might propose different treatment, the result is the same: no
8th Amendment violation lies simply because different medical professionals might prescribe
different treatments for the same condition. Mr. Reneau’s own submissions demonstrate that Dr.
Fauvel was providing him with treatment for his back pain, in the form of pain medications, a
lumbar support, and weight-lifting restrictions. The fact that Mr. Reneau believes that a different
medical provider might have prescribed a different or better course of treatment does not give
rise to an 8th Amendment violation.2 Toler, 631 Fed.Appx . at 547-48.
The same record also indicates that Ms. Soucie – to the extent she is even a medical
provider – reviewed Mr. Reneau’s records and encouraged him to continue his treatment with
Dr. Fauvel. Rather than manifesting a deliberate indifference to Mr. Reneau’s medical needs,
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The fact that Dr. Fauvel initially requested the MRI examination, then apparently
changed his mind when it was denied, does not alter the analysis. Nothing in the 8th
Amendment’s prohibition against cruel and unusual punishment can be understood to prevent a
prison medical provider from reconsidering his own prior treatment recommendations.
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Ms. Soucie’s instructions reinforced the fact that Mr. Reneau was receiving treatment for his
condition from Dr. Fauvel. Thus, Mr. Reneau fails to state a claim against Ms. Soucie as well.
The allegations Mr. Reneau makes against the Doe Defendant, whom he now seeks to identify as
Dr. Mix, fail to state a claim for the same reason.
The situation with Dr. Christner is slightly different. Mr. Reneau offers almost no
specific allegations against Dr. Christner, except to say that he requested that she approve an
MRI examination for him and that she refused. He does not describe what treatment Dr.
Christner did provide him, but, at the same time, he does not allege that Dr. Christner abandoned
the treatment protocol that Dr. Fauvel had been following or otherwise medically abandoned Mr.
Reneau. Thus, as to Dr. Christner, the record indicates only that she refused a request by Mr.
Reneau to authorize a procedure that numerous previous providers had already rejected. In this
regard, Mr. Reneau has merely alleged that he and Dr. Christner had a difference of opinion as to
how his condition should be treated, and that disagreement, of itself, fails to amount to an 8th
Amendment violation. Toler, 631 Fed.Appx. at 547.
Accordingly, the Court adopts the Magistrate Judge’s Recommendation and grants the
Defendants’ motion to dismiss. Similarly, for the reasons set forth already, the Court agrees with
the Magistrate Judge that allowing Mr. Reneau leave to amend his pleadings to identify the Doe
Defendant as Dr. Mix would be futile, as his substantive allegations against Dr. Mix would be
insufficient in any event.
CONCLUSION
For the foregoing reason, the Court OVERRULES Mr. Reneau’s Objections (# 43, 49),
and ADOPTS the Recommendations (# 41, 48). The Defendants’ Motion to Dismiss (# 33) is
GRANTED, and the claims against all named Defendants are DISMISSED. Mr. Reneau’s

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Motion to Amend (# 46) is DENIED AS MOOT, insofar as amendment to identify the Doe
Defendant would be futile, as the claims against that Defendant would be subject to dismissal for
failure to state a claim in any event. There being no viable claims that survive this Order, the
Clerk of the Court shall close this case.
Dated this 6th day of March, 2017.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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