Anderson v. Colorado Department of Corrections et al

Filing 47

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re granting 23 MOTION to Dismiss, by Magistrate Judge Michael J. Watanabe on 8/21/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02113-CMA-MJW
TROY ANDERSON,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS “CDOC”,
RICK RAEMISCH, Executive Director, CDOC,
TRAVIS TRANNI, Warden,
JILL LAMPELLA, Dr.,
CHRIS ESTEP, Dr., and
L. TAFOYA, Warden,
Defendants.

REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION TO DISMISS (DOCKET NO. 23)

Michael J. Watanabe
United States Magistrate Judge
This case is before this court pursuant to an Order of Reference to Magistrate
Judge issued by Judge Christine M. Arguello on September 26, 2016. (Docket No. 13.)
Now before the court is Defendants Colorado Department of Corrections, Chris Estep,
Jill Lampella, Rick Raemisch, Laura Tafoya, and Travis Tranni’s Motion to Dismiss.
(Docket No. 23.) The court has carefully considered the motion, Plaintiff’s response
(Docket No. 41), and Defendants’ reply. (Docket Nos. 42.) The court has taken judicial
notice of the court’s file and has considered the applicable Federal Rules of Civil
Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and recommendation.

I. BACKGROUND
a. Relevant Facts
The court will attempt to briefly summarize the relevant facts contained in
Plaintiff’s 55-page handwritten Amended Complaint. (Docket No. 21.) The court
assumes these facts and allegations are true for purposes of a motion to dismiss.
Plaintiff is a prisoner who has been confined in the Colorado Department of
Corrections (“CDOC”) since 2000. (Id. ¶ 2.) He has been diagnosed with several mental
health issues, including attention deficit/hyperactivity disorder, anxiety, depression, antisocial personality disorder, intermittent explosive disorder, and an organic brain
dysfunction that affects his ability to function on a daily basis. (Id. ¶ 22.) Due to his
mental illnesses, Plaintiff has been placed in administrative segregation and restrictive
housing for indefinite periods of time, and has been incarcerated at several different
facilities, including Colorado State Penitentiary (“CSP”), Centennial Correctional Facility
(“CCF”), Sterling Correctional Facility (“SCF”), San Carlos Correctional Facility (SCCF),
and Fremont Correctional Facility (“FCF”), where he currently resides.
In 2010, Plaintiff filed a lawsuit in this district (Case No. 2010-cv-1005-RBJ-KMT)
protesting the condition of his confinement in CSP, where he had been held in
administrative segregation for over ten years. On August 24, 2012, following a trial to
the court, Judge Jackson concluded that CSP’s failure to provide reasonable access to
the out of doors and outdoor exercise constituted a violation of Mr. Anderson’s Eighth
Amendment rights. Anderson v. Colorado, 887 F. Supp. 2d 1133, 1142 (D. Colo. 2012)
(hereinafter “Anderson I”). He also directed CDOC to appoint a physician to reexamine

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Plaintiff, evaluate his mental health treatment, review his medical records, and “take
whatever steps he or she concludes are appropriate in his or her m edical judgment.
This may or may not include any medication change.” Id. at 1145. Judge Jackson
ordered that Plaintiff was to have “access for at least one hour, at least three times per
week, to outdoor exercise in an area that is fully outside and that includes overhead
access to the elements, e.g., to sunlight, rain, snow and wind, unless inclement weather
or disciplinary needs make that impossible.” Id. at 1157. On April 7, 2015, Judge
Jackson, issued an order denying Plaintiff’s Motion to Enforce Judgment, stating that
“[a]lthough it took a while, the Court’s orders have been implemented and then
some.”Anderson v. Colo. Dep’t of Corr., No. 10-CV-01005-RBJ-KMT, 2015 WL
1593884, at *5 (D. Colo. Apr. 7, 2015) (hereinaf ter “Anderson II”).
Immediately thereafter, Plaintiff alleges that Defendants began to discontinue
Plaintiff’s successful treatment plan, over the protests of Dr. Bryce Wilson, Plaintiff’s
treating physician. (Docket No. ¶¶ 72-73.) On July 20, 2015, Plaintiff was transferred
from SCF, where he had been receiving outdoor exercise, to CCF. He went on hunger
strike beginning on July 25, 2015 to protest the transfer and discontinuation of his
medical treatment. (Id. ¶ 76.) Defendant Estep, a licensed psychologist, was aware of
the hunger strike but did not inform any authorities. (Id. ¶ 77.) After the hunger strike
ended eleven days later, Plaintiff was placed for five days in what he terms a “cold cell”
where lights were always on, the temperature was cold, and noise of the intake area
made it difficult to sleep. (Id. ¶ 81.) He was then moved to the infirmary for one day,
before returning to a regular cell. (Id. ¶ 82.)

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On August 11, 2015, Defendant Estep prepared a “fraudulent” report that
essentially reversed the successful mental health treatment plan that had been
implemented. (Id. ¶ 84.) Plaintiff also alleges that Defendant Estep refused to allow
Plaintiff to make legal calls, and went so far as to impersonate an attorney. (Id. ¶¶ 79,
85.)
On September 10, 2015, Plaintiff was transferred back to CSP. (Id. ¶ 87.) He
returned to harsher conditions than those he f aced prior to his earlier lawsuit. (Id.)
Defendant Tranni, the warden of both CCF and CSP, approved the transfer, and
Plaintiff was placed in Restrictive Housing Maximum Security, even though it is prison
policy to not place seriously mentally ill prisoners there. (Id. ¶¶ 87-88.) Throughout his
stay at CSP, Plaintiff unsuccessfully tried to obtain mental health treatment; he was
even denied a television, despite the recommendation of Dr. Darren Lish, CDOC’s
Chief of Psychiatry, that he be permitted one to distract him from obsessive thoughts.
(Id. ¶¶ 89-90.)
In late September 2015, Plaintiff’s arm was caught in his cell door. (Id. ¶ 90.) He
was denied treatment for his injuries for several days. (Id. ¶ 90.)
Plaintiff’s counsel sent Defendant Raemisch a letter on December 4, 2015,
expressing concerns that Judge Jackson’s order was not being complied with regarding
Plaintiff’s access to direct sunlight and mental health treatment. (Id. ¶¶ 89-92.) It was
ignored. (Id.)
On December 11, 2015, Plaintiff was transferred to SCCF. (Id. ¶ 94.) Plaintiff
was denied bedding for four days, a shower for a week, and legal calls for 17 days. (Id.)

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He was denied all access to direct sunlight for the entirety of his stay at SCCF, even
though the facility has outdoor recreation cages. (Id. ¶ 98.) Plaintiff also had difficulty
receiving appropriate mental health treatment. He wanted a reinstatement of an earlier,
successful treatment plan created by Dr. Shepard, but Defendant Estep’s diagnoses
were used instead. (Id. ¶¶ 100-103.) He blames Defendants Raemisch and Tafoya, the
latter of whom is SCCF’s warden, for these conditions.
Plaintiff was transferred to FCF on August 22, 2016. (Id. ¶ 108). He has access
to direct sunlight, better conditions, and a mental health treatment plan, although he
remains concerned that it could be taken away from him again. .(Id.)
b. Procedural History
Plaintiff filed his Amended Complaint (Docket No. 23) on November 9, 2016,
against six named defendants: Colorado Department of Corrections, Rick Raemisch,
Travis Tranni, Jill Lampella, Chris Estep, and Laura Tafoya.
Plaintiff asserts six claims for relief:
(1) a 42 U.S.C. § 1983 claim for cruel and unusual punishment under the Eighth
Amendment against Defendants Raemisch, Tranni, and Tafoya for their failure to
provide outdoor exercise;
(2) a 42 U.S.C. § 1983 claim for failure to provide adequate mental health
treatment under the Eighth Amendment against Defendants Raemisch, Tranni,
Tafoya, Lampella, and Estep;
(3) a 42 U.S.C. § 1983 claim for retaliation under the First Amendment against
Defendants Raemisch, Tranni, Tafoya, and Estep;

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(4) a claim for violation of the Americans With Disabilities Act, 42 U.S.C. §
12101) (“ADA”), against Defendant CDOC;
(5) a claim for violation of the Rehabilitation Act, 29 U.S.C. § 794, against
Defendant CDOC; and
(6) a 42 U.S.C. § 1983 claim for deliberate indifference under the Eighth
Amendment against Defendants Raemisch and Tranni based on Plaintiff’s
injuries from the cell door closing on his arm.
Defendants request that Plaintiff’s Amended Complaint be dismissed under Rule
12(b)(6) and under the doctrine of qualified immunity. (Docket No. 23.)
II. STANDARDS OF REVIEW
a. Pro Se Plaintiff
Plaintiff originally proceeded pro se, and the Amended Complaint (Docket No.
21) is a pro se pleading.1 The court, therefore, reviews this pleading “liberally and
hold[s][it] to a less stringent standard than those drafted by attorneys.” Trackwell v.
United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation s omitted). However, a pro
se litigant’s “conclusory allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways that a plaintiff has not
alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173–74
1

Plaintiff was appointed counsel on January 13, 2017. (Docket No. 29.) For
whatever reason, Plaintiff’s appointed counsel did not move to amend his complaint.
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(10th Cir. 1997) (court may not “supply additional factual allegations to round out a
plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.
1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). The plaintiff’s pro se status does not
entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002).
b. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and q uotation
marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at1198. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two

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prongs of analysis. First, the court identifies “the allegations in the complaint that are
not entitled to the assumption of truth,” that is, those allegations which are legal
conclusion, bare assertions, or merely conclusory. Id. at 679–81. Second, the Court
considers the factual allegations “to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim
survives the motion to dismiss. Id. at 679.
However, the court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th
Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
c. Qualified Immunity
Section 1983 of Title 42 of the United States Code allows an injured person to
seek damages for the violation of his or her federal rights against a person acting under
color of state law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48
(1988). To assert a claim under § 1983, Plaintiff must show (1) that he had a right

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secured by the Constitution and laws of the United States that was violated (2) by a
person who acted under color of state law. Hall v. Witteman, 584 F.3d 859, 864 (10th
Cir. 2009). The doctrine of qualified immunity “shields government officials performing
discretionary functions from individual liability under 42 U.S.C. § 1983 unless their
conduct violates clearly established statutory or constitutional rights of which a
reasonable person would have known.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.
2001) (quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998)
(internal quotation marks omitted)). Qualified immunity is an affirmative defense to §
1983 liability. See Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). Once a
defendant asserts the defense, the plaintiff must demonstrate that qualified immunity is
not proper by showing that “(1) the defendant's conduct violated a constitutional right
and (2) the law governing the conduct was clearly established at the time of the alleged
violation.” DeSpain, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255).
III. ANALYSIS
a. Mootness (Claims One and Two)
Defendants argue that Claims One and Two of Plaintiff’s Amended Complaint
should be denied as moot because Plaintiff concedes he now has access to outdoor
exercise and that he is currently satisfied with his mental health treatment plan. Plaintiff
argues that Defendants can deny him mental health treatment and access to courtmandated outdoor recreation at any time.
The mootness doctrine incorporates two aspects: (I) whether the issues are live;
and (ii) whether the parties have a legally cognizable interest in the outcome. See

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Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011).
The critical question in determining these two aspects is “whether granting a present
determination of the issues offered will have some effect in the real world.” Kennecott
Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir.1999). W hen
circumstances change such that the court is unable to grant effective relief that has
some effect in the real world, a live case or controversy no longer exists and the case
is, therefore, moot. See McKeen v. U.S. Forest Serv., 615 F.3d 1244, 1255 (10th Cir.
2010). Demonstrating that a case is moot is a heavy burden and lies with the party
alleging that the action is moot. See id.
There are, however, exceptions to the mootness doctrine. Thus, even if an
action appears moot on its face, a court will refrain from dismissing the action when
certain circumstances are present. The generally recognized exception that is relevant
to this case is where the defendant voluntarily ceases an alleged illegal practice, but is
free to resume it at any time. See Riley v. INS, 310 F.3d 1253, 1256–57 (10th Cir.
2002). “[V]oluntary cessation of offensive conduct will only moot litigation if it is clear
that the defendant has not changed course simply to deprive the court of jurisdiction.”
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir.
2010) (citation omitted).
Here, Plaintiff filed his original Complaint (Docket No. 1) on August 19, 2016. He
was transferred from SCCF, where he alleges he did not receive outdoor exercise or
mental health treatment, to CCF, where he currently is placed, on August 22, 2016. It is
possible that the two events are completely unrelated. However, at this time, it is not

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clear or obvious to the court that this is the case. Moreover, it appears true that Plaintiff
could be transferred to another facility, such as SCCF or CSP, at any time and for
whatever reason. Accordingly, the court finds that Plaintiff’s Claims One and Two are
not moot.
b. Claim One
Claim One alleges that Defendants Raemisch, Tranni, and Tafoya denied
Plaintiff access to outdoor exercise in violation of the Eighth Amendment. Defendants
contend that this claim fails as a matter of law because Plaintiff does not establish that
the defendants personally participated in any denial of outdoor exercise, which is
necessary to hold them liable as prison supervisors. Plaintiff argues that his Amended
Complaint sufficiently establishes supervisory liability.
1. Supervisor Liability
Supervisory liability “allows a plaintiff to impose liability upon a
defendant-supervisor who creates, promulgates, or implements a policy which subjects,
or causes to be subjected that plaintiff to the deprivation of any rights secured by the
Constitution.” Brown v. Montoya, 662 F.3d 1152, 1163–64 (10th Cir. 2011) (citation and
alterations omitted). However, Section 1983 does not authorize liability under a theory
of respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
Instead, to establish supervisory liability, a plaintiff must show 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.”

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Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). T he plaintiff must show an
“affirmative link” between the supervisor and the constitutional violation. Id. at 1195.
The requisite showing of an “affirmative link” between a supervisor and the alleged
constitutional injury has three related prongs: (1) personal involvement, (2) a causal
connection to the constitutional violation, (3) and a culpable state of mind. See
Schneider v. City of Grand Junction Police Dep’t., 717 F.3d 760, 767-69 (10th Cir.
2013) (discussing standards for supervisory liability).
With this in mind, the court turns to Plaintiff’s claim. Claim One alleges that (1)
Defendant Tranni was responsible for assigning him to CSP, where he knew Plaintiff
would not have outdoor recreation; (2) Defendant Raemisch was aware of the
unconstitutional conditions and ignored Plaintiff’s requests for a meeting; and (3)
Defendant Tafoya, as warden of SCCF, was responsible for Plaintiff’s denial of outdoor
recreation at that facility.
The court finds that Claim One adequately alleges personal participation by
Defendant Tranni but not as to Defendants Raemisch or Tafoya. Plaintiff alleges that
Defendant Tranni was personally involved in the decision to transfer him to CSP, where
Defendant Tranni knew that, in violation of Judge Jackson’s order, Plaintiff would not
have access to direct sunlight. (See Docket No. 21 ¶ 88-89.) And once he was
transferred to CSP, Plaintiff was, in fact, denied outdoor exercise. This is enough to
state a claim against Defendant Tranni.
However, Plaintiff only makes conclusory allegations that Defendant Raemisch
was involved in any of Plaintiff’s transfers between facilities. Indeed, it is unclear how

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Tranni and Raemisch can both be responsible for his transfer to CSP, as Plaintiff
apparently believes. And in his Amended Complaint, Plaintiff alleges that his transfer to
CCF was ordered by Defendant Lampella. (Docket No. 21 ¶ 75.) Moreover, Defendant
Raemisch’s mere awareness that Plaintiff has been involved in ongoing litigation does
not give rise to liability, nor does the fact that he did not meet with Plaintiff to discuss is
placement in CSP.
As to Defendant Tafoya, Plaintiff does not allege that she was personally
involved in denying Plaintiff access to outdoor facilities. Although Plaintiff’s Amended
Complaint is unclear on this point, it appears that SCCF has outdoor recreation cag es
or “dog runs” that would allow direct sunlight, but Plaintiff was denied access to them.
Plaintiff does not allege that Defendant Tafoya was in any way responsible for this
decision. Thus, Plaintiff has not sufficiently alleged personal participation on the part of
Defendants Raemisch and Tafoya, and the court recommends that Claim One be
dismissed as to these Defendants.
2. Qualified Immunity
The question remains whether Defendant Tranni’s actions violated a “clearly
established” constitutional right. While Plaintiff’s Eighth Amendment rights were violated
when he was denied outdoor access for twelve years, he was only deprived of outdoor
exercise at CSP for four months. The Tenth Circuit recently held that Defendants
Raemisch and Tranni were entitled to qualified immunity against suits by prisoners who
were deprived of outdoor exercise for eleven months and for two years and one month,
respectively. See Apodaca v. Raemisch, No. 15-1454, slip op. at Parts III-IV, ––– F.3d

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––––, ––––, 2017 W L 3138361 (10th Cir. July 25, 2017) (to be published); Lowe v.
Raemisch, No. 16–1300, ––– F.3d ––––, ––––, slip op. at Part 2(d) (10th Cir. July 25,
2017) (to be published). The Court of Appeals stated that Judge Jackson’s order in
Plaintiff’s earlier case did not preclude qualified immunity due to the difference in the
length of the deprivation, the fact that a district court ruling is not controlling, and
because Defendants Raemisch and Tranni’s knowledge of Judge Jackson’s order was
immaterial given the standard is “whether it would have been clear to a reasonable
officer that the alleged conduct ‘was unlawful in the situation he confronted.’” Apodaca,
2017 WL 3138361, at *6; Lowe, 2017 WL 3138609 at *5 (both quoting Ziglar v. Abbasi,
582 U.S. –––– (2017)).
With this guidance, the court must find that competent officials could reasonably
disagree about the constitutionality of disallowing outdoor exercise for a period of four
months. Therefore, Defendant Tranni did not violate a clearly established constitutional
right and is entitled to qualified immunity.
For these reasons, the court recommends that Plaintiff’s Claim One be
dismissed.
c. Claim Two (Deliberate Indifference)
Claim Two alleges that Defendants Raemisch, Tranni, and Tafoya failed, in their
supervisor capacity, to ensure that Plaintiff had adequate mental health treatment.2
Plaintiff also alleges that Defendants Lampella and Estep were deliberately indifferent

2

Although Plaintiff also alleges that Defendant Lampella failed to properly
supervise her employees, his claim against this defendant is more properly interpreted
as one for direct deliberate indifference. Therefore, the court will address it below.
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to his serious medical needs. Specifically, Plaintiff claims that Lampella is liable for
discontinuing his prior treatment, and Estep for fraudulently preparing a report that
stripped away his diagnoses and for failing to alert CCF medical staff about Plaintiff’s
hunger strike.
1. Personal Participation
For reasons similar to those described above, the court finds that Plaintiff’s claim
should be dismissed as to Defendants Raemisch, Tranni, and Tafoya for failure to
plausibly allege personal participation. Plaintiff’s Amended Complaint contains no
allegations that Defendant Raemisch was personally involved in any aspect of Plaintiff’s
mental health treatment, apart from being aware of Plaintiff’s mental health conditions
and prior litigation and his overall responsibilities as Executive Director of the
Department of Corrections. Similarly, Defendant Tafoya’s involvement is limited to her
role as warden, and Plaintiff fails to plausibly allege that she was personally involved in
the denial of mental health treatment, bedding, showers, or “legal property or calls”
while Plaintiff was incarcerated at SCCF. Indeed, Plaintiff alleges that “John and or
Jane Doe staff approved these conditions.” (Docket No. 21 ¶ 94.) Defendant Tafoya
cannot be vicariously liable for the actions of these unnamed subordinates. Accordingly,
the court recommends that Claim Two be dismissed as to Defendants Raemisch and
Tafoya.
Plaintiff alleges that Defendant Tranni personally participated in denying him
mental health treatment by being involved the decision to place Plaintiff in Restrictive
Housing Maximum Security, which went against CDOC policy of not placing seriously
mentally ill prisoners in this level of confinement. (See Docket No. 21 ¶ 87.) However,
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Plaintiff makes no allegation that Defendant Tranni played any role in providing medical
care to prisoners; it is uncontested that Tranni was an administrator, not a doctor.
Instead, Plaintiff states that he was denied mental health treatment “by staff” who relied
on Defendant’s Estep’s “fraudulent report,” which indicates medical personnel were
making the decision regarding Plaintiff’s treatment. Finally, Defendant Tranni’s refusal
to allow Plaintiff to have a television does not amount to a constitutional violation.
Therefore, Claim Two should be dismissed as to this defendant.
2. Deliberate Indifference
A prison official’s deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000). The Eighth Amendment test for deliberate indifference requires the satisfaction
of both an objective and subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005) (internal quotations and citations omitted). First, the objective component
requires that the prisoner “produce objective evidence that the deprivation at issue was
in fact ‘sufficiently serious.’” Id. 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.” Id.
Second, the subjective component is satisfied when a prison official has a culpable
mind, meaning that the official “knows of and disregards an excessive risk to inmate
health or safety.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). The Tenth
Circuit has emphasized that “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

16

also draw the inference. Deliberate indifference requires more than mere negligence.”
Sealock, 218 at 1205. The subjective component is “akin to recklessness in the criminal
law, where, to act recklessly, a person must consciously disregard a substantial risk of
serious harm.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (internal citations
and quotations omitted). The subjective component “presents a high evidentiary hurdle
to the plaintiffs: a prison official must know about and disregard a substantial risk of
serious harm. . . . A claim is therefore actionable only in cases where the need for
additional treatment or referral to a medical specialist is obvious.” Id. at 1232. A prison
official acts with deliberate indifference “only if he knows that inmates face 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]n inadvertent failure to provide medical care does
not rise to a constitutional violation.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009) (internal quotations and citations omitted).
I. Mental Health Treatment
The court finds that Plaintiff’s mental illnesses constitute a serious medical need.
Thus, the objective component is met.
Turning to the subjective component, the court must first address Plaintiff’s
misinterpretation of Judge Jackson’s orders. While Plaintiff is absolutely entitled to
adequate medical care, including mental health treatment, Judge Jackson never
ordered that a specific treatment plan be followed. Indeed, he stated that the court “was
not in a position to second-guess the medical judgment of his physicians with respect to
medication prescribed for” Plaintiff, but only directed that a “CDOC physician without

17

previous contact with Mr. Anderson . . . take a fresh look at his medication and
treatment needs.” Anderson II, 2015 WL 1593884, at *1. That evaluation was
completed. See id. Therefore, the mere fact that Plaintiff’s treatments or diagnoses
were changed does not automatically equate to wrong-doing.
This affects Plaintiff’s claims against Defendants Lampella and Estep. Plaintiff
complains that Lampella failed to follow the treatment plan created by Dr. Wilson, and
disagrees with the methods and result of Estep’s evaluation. However, an inmate is
only entitled to receive a medical examination; he is not entitled to a diagnosis he likes.
Estelle v. Gamble, 429 U.S. 97, 104–06 (1976); Perkins v. Kansas Dep’t of Corrs., 165
F.3d 803, 811 (10th Cir.1999) (“[A] prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation.”); Coppinger v.
Townsend, 398 F.2d 392, 394 (10th Cir. 1968) ( “The prisoner's right is to medical
care—not to the type or scope of medical care which he personally desires.”) “A
difference of opinion between a physician and a patient does not give rise to a
constitutional right or sustain a claim under § 1983.” Coppinger, id. Other than his fourmonth stay at CSP (and neither Lampella nor Estep seem to be involved in his
treatment at that facility), Plaintiff does not allege that he was denied medical treatment,
just that he was denied his preferred treatment. For example, at SCCF, he admits that
he had four clinicians assigned to him in his eight month stay. (Docket No. 21 ¶ 100.) It
is obvious that his real problem at that facility was that medical staff “refused to . . .
reinstate Dr. Shepard’s court ordered finding.” (Docket No. 21 ¶ 101.) Plaintiff does not
plausible allege that Defendants Lampella and Estep denied him medical treatment.

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Therefore, he has not stated an Eight Amendment claim for deliberate indifference.
ii. Hunger Strike
Plaintiff alleges that Defendant Estep violated his constitutional rights by
deliberating ignoring his hunger strike and its consequences. Plaintiff alleges that he
told Estep that he was going on a hunger strike, and that Estep observed Plaintiff’s
condition while he engaged in the hunger strike, including witnessing him stumble and
fall. (Id. ¶¶ 76 & 78.) Plaintiff alleges that Estep did not notify any other medical staff of
Plaintiff’s hunger strike, which violated prison policy, and that he “made no report to
treat, help, or intervene.” (Id. ¶ 78.)
The only resulting harm from Plaintiff’s hunger strike was weight loss, weakness,
and dehydration. While “[p]rison administrators have a right and a duty to step in and
force an inmate to take nourishment if a hunger strike has progressed to the point
where continuation risks serious injury or death[,] . . . if weight loss and temporary
discomfort are the only consequences of refusing to eat, then the inmate's choice to go
on a hunger strike raises no Eighth Amendment concern.” Owens v. Hinsley, 635 F.3d
950, 955 (7th Cir. 2011). Moreover, Plaintiff’s allegation that he was in a life-threatening
condition is belied by the fact that he remained in the infirmary for one day. (Docket No.
21 ¶ 82.)
Plaintiff seemingly recognizes this weakness in his claim, and attempts to get
around the fact that he was the author of his dehydrated and weakened state by
arguing that his hunger strike was a direct consequence of his deteriorating mental
condition. This may be so, but his worsening condition cannot be laid at the feet of

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Defendant Estep. Plaintiff admits that upon being transferred to CCF, he “immediately
told [Estep] that he was going on a hunger strike to protest the transfer . . ..” (Id. ¶ 76.)
However, Estep was not responsible for the transfer to CCF (that was Defendant
Lampella) or his condition (he performed his evaluation after Plaintiff arrived at CCF).
Accordingly, he cannot be liable for an Eight Amendment violation under a deliberate
indifferent theory.
d. Claim Three (Retaliation)
Plaintiff’s Claim Three is a retaliation claim against Defendants Raemisch,
Tranni, Tafoya, and Estep. Prison officials may not retaliate against an inmate for
exercising his constitutional rights. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th
Cir. 1998). To state a retaliation claim Plaintiff must demonstrate (1) that he was
engaged in constitutionally protected activity, (2) that Defendants’ actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity, and (3) that Defendants’ adverse actions were substantially motivated as
a response to Plaintiff's constitutionally protected activity. See Allen v. Avance, 491 F.
App’x 1, 6 (10th Cir. 2012). “Mere allegations of constitutional retaliation will not suffice;
plaintiffs must rather allege specific facts showing retaliation because of the exercise of
the prisoner's constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir.
1991).
Here, Plaintiff alleges that the was retaliated against for engaging in the prior
litigation, which is a constitutionally protected activity. Plaintiff claims that Defendants
engaged in a deliberate, consistent pattern of denying him access to the law library,

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legal calls, and “legal property” at multiple facilities. He also states that he was denied
basic staples like bedding, mattresses, and showers at SCCF.
The claims against Defendants Raemisch, Tranni, and Tafoya are based on their
supervisor positions, but Plaintiff utterly fails to allege that they personally participated
in the activities at issue. In fact, Plaintiff blames things like his placement in the “cold
cell” at CCF and his difficulties in accessing his “legal properties” to “John or Jane Doe
Staff at both CCF and SCCF.” (Docket No. 21 ¶ 149.) In short, Plaintif f offers no
“affirmative link” between these supervisors and the constitutional violations.
Plaintiff claims that Defendant Estep retaliated against him by denying him
medical treatment and also refusing requests for legal calls. It is unclear to the court
how a doctor such as Defendant Estep would have the authority to deny Plaintiff access
to legal property or phone calls. Further, Plaintiff’s allegation that Defendant Estep
“impersonated an attorney in an attempt to lure [Plaintiff] for testing” (Id. ¶ 149) is both
implausible and insignificant. Plaintiff also offers nothing but mere allegations that
Defendant Estep’s actions were motivated by Plaintiff’s prior lawsuit. Finally, Estep’s did
not fail to provide medical treatment, as discussed above, so that cannot form the basis
for retaliatory liability.
Accordingly, the court recommends that Claim Three be dismissed.
e. Claims Four and Five (ADA and Rehabilitation Act)
The ADA prohibits discrimination by public entities on the basis of disability. The
Rehabilitation Act prohibits such discrimination by recipients of federal funding. To state
a claim under the ADA and/or the Rehabilitation Act a “plaintif f must allege that: (1) he

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is a qualified individual with a disability, (2) who was excluded from participation in or
denied the benefits of a public entity's services, programs, or activities, and (3) such
exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson
v. Las Animas County Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir.2007). State
prisons are public entities covered by Title II of the ADA. See Penn. Dep’t of Corrs. v.
Yeskey, 524 U.S. 206, 209 (1998).
Assuming without deciding that Plaintiff is a qualified individual with a disability,
the court is unable to discern what CDOC services, programs, or activities Plaintiff
alleges he was denied the benefit of due to his mental illnesses. Defendants seem to
assume that these claims are based on the alleged denial of proper mental health
treatment, and points out that purely medical decisions ordinarily do not fall within the
scope of the ADA. See Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144
(10th Cir. 2005); Rashad v. Doughty, 4 Fed. App’x. 558, 560 (10th Cir. 2001) (“the
failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth
Amendment concerns in certain circumstances, does not constitute an ADA violation.”);
Anderson I, 848 F. Supp. 2d at 1300 (noting that the ADA and the Rehabilitation Act do
not provide a private right of action for substandard medical care).
In contrast, in his response, Plaintiff only cites Judge Jackson’s 2012 Order that
acknowledged that the lack of appropriate treatment prevented Plaintiff from taking
advantage of opportunities to progress out of administrative segregation. This argument
is unavailing, however, because the CDOC ended the use of indefinite long-term
administrative segregation prior to the filing of this suit. See Anderson II, 2015 WL

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1593884, at *3 (D. Colo. Apr. 7, 2015). Therefore, Judge Jackson’s reasoning is
inapplicable to the facts at hand.
Plaintiff has failed to state a claim for relief under the ADA or Rehabilitation Act.
Therefore, the court recommends that Claim Four and Five be dismissed.
e. Claim Six (Deliberate Indifference )
Plaintiff’s final claim for relief is brought under the Eighth Amendment against
Defendants Raemisch and Tranni. It is a scattershot claim that centers on the injuries
Plaintiff sustained when a cell door closed on his arm, but also mentions his hunger
strike, his mental health treatment, and his placement in restrictive housing. In his
response, Plaintiff only addresses the incident with the cell door, and maintains that he
has asserted a facially plausible claim for supervisory liability.
This claim fails as a matter of law as to Defendant Raemisch. Plaintiff does not
allege that he knew that there was a defective cell door or that Plaintiff had been injured
by the door.
Turning to Defendant Tranni, while Plaintiff alleges that Defendant Tranni was
aware that CSP cell doors malfunctioned, this, at best, amounts to mere negligence.
Under the deliberate indifference standard set forth above, Plaintiff was required to
plausibly allege both that Tranni was aware of the facts from which the inference could
be drawn that the door in Plaintiff’s cell constituted a substantial risk of serious harm,
but also that Tranni in fact drew that inference. Plaintiff does not sufficiently allege the
latter. His Amended Complaint fails to establish that Defendant Tranni consciously
disregarded the safety risk posed by the door that closed on Plaintiff’s arm. A general
awareness of that this was a problem in the facility is not enough to state a claim. As to
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Plaintiff’s treatment after he door closed on his arm, Plaintiff does not allege that Tranni
was aware that the incident happened or that Plaintiff suffered injuries, and therefore he
cannot be liable for deliberate indifference or failure to treat.
IV. RECOMMENDATION
Based upon the foregoing, it is hereby RECOMMENDED
•

that Defendants Colorado Department of Corrections, Chris Estep, Jill
Lampella, Rick Raemisch, Laura Tafoya, and Travis Tranni’s Motion to
Dismiss. (Docket No. 23.) be GRANTED, and

•

Plaintiff’s Amended Complaint (Docket No. 21) be DISMISSED WITH
PREJUDICE.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);

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Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

BY THE COURT
Date: August 21, 2017
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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