Stout v. Woodson et al

Filing 47

ORDER Adopting the 43 Recommendation of United States Magistrate Judge Scott T. Varholak; GRANTING 22 and 24 Defendants' Motions to Dismiss, by Judge Christine M. Arguello on 6/13/2018. (swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-01904-CMA-STV
CHARLES J. STOUT,
Plaintiff,
v.
LORI SEITZ,
MICHELLE WESOLOWSKI,
ELLIARD,
ELISON, and
LEGGET,
Defendants.
ORDER ADOPTING THE RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE SCOTT T. VARHOLAK
This matter is before the Court on review of the Recommendation by United
States Magistrate Judge Scott T. Varholak (Recommendation) (Doc. # 43), wherein he
recommends that this Court
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grant Defendants’ motions for dismissal of Plaintiff Charles J. Stout’s Eighth
Amendment Claim (Claim One) against Defendant Lori Seitz, and

•

decline to exercise supplemental jurisdiction over Plaintiff’s state negligence
claim (Claim Two) against all Defendants.
The Recommendation is incorporated herein by reference. See 28 U.S.C. §

636(b)(1)(B); Fed. R. Civ. P. 72(b). For the following reasons, the Court adopts the

Recommendation, grants Defendants’ motions, dismisses with prejudice Claim One,
and declines to exercise supplemental jurisdiction over Claim Two.
I.

STANDARD OF REVIEW

Plaintiff objects to the Recommendation in its entirety. Federal Rule of Civil
Procedure 72(b)(3) thus requires that this Court conduct a de novo review of the issues.
In so doing, the Court “may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Id. Arguments raised for the first time in objections are deemed waived and need not
be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
II.

BACKGROUND

Plaintiff is a participant in Colorado’s Sex Offender Treatment and Monitoring
Program (SOTMP) who is housed at the Cheyenne Mountain Re-entry Center (CMRC)
in Colorado Springs, Colorado. (Doc. # 43 at 2.) As part of his participation in the
SOTMP, Plaintiff is required to adhere to a highly structured treatment program. (Doc. #
10 at 12.) He must also abide by a personal change contract, also known as a relapse
prevention plan. (Id. at 18.) As pertinent here, Plaintiff’s personal change contract
identifies the kitchen as a high risk area for him; Plaintiff contends that being in the
kitchen causes him to act out sexually and experience mental anguish and physical
pain. (Id. at 5.) He adds that the SOTMP teaches him to avoid such triggers and get
out of high risk areas as soon as possible. (Id.)
Nonetheless, Plaintiff was assigned to kitchen duty in November 2016. (Id. at 4.)
Because of the kitchen being a high risk area for him, Plaintiff was removed after one
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and half days. (Id.) However, Plaintiff was again assigned kitchen duty in early July
2017. (Id. at 4–5.) Plaintiff immediately requested a meeting with his mental health
therapist Defendant Lori Seitz to discuss this July assignment. (Id. at 5.) It is unclear
from the Amended Complaint precisely what he told Ms. Seitz. (Id. at 4–5.) In any
event, Plaintiff contends that Ms. Seitz responded by saying, “[I] see you are doing ok in
the kitchen[. Y]ou have learned tools to be in a high risk area.” (Id.) Plaintiff thereafter
remained on kitchen duty for sixty days. (Id. at 4.) He contends that, as a result, he
suffered “mental anguish,” with physical manifestations, such as “rash, severe back
pain, increased thoughts of sexually acting out, [and the] urge to masturbate more
frequently.” (Id. at 5.) Plaintiff was eventually removed from kitchen duty; he is now
employed as a porter in the residential housing unit. (Id. at 4.)
Plaintiff initiated this action in part as a result of his being placed on kitchen duty.
He specifically alleges that, by allowing him “to be put in a high risk area [the kitchen] . .
. against his personal change contract, which is part of his SOTMP criteria/treatment,”
Ms. Seitz acted with deliberate indifference to his medical condition in violation of the
Eighth Amendment (Claim One). (Id. at 2.)
Defendants contend that Plaintiff has failed to sufficiently plead this Eighth
Amendment claim and that it should therefore be dismissed under Federal Rule of Civil
Procedure 12(b)(6).

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III.

LAW GOVERNING A RULE 12(b)(6) MOTION TO DISMISS

Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint for failure to
state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in
support of his claim that would entitle him to relief. Golan v. Ashcroft, 310 F. Supp. 2d
1215, 1217 (D. Colo. 2004). In reviewing a motion to dismiss, courts take all wellpleaded allegations in the plaintiff’s complaint as true and construe the allegations in the
light most favorable to plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).
However, a 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 (10th Cir. 1997) (court may not “supply additional factual allegations to
round out a plaintiff’s complaint”).
Plaintiff appears pro se in this matter. The Court, therefore, “review[s] his
pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Plaintiff’s pro
se status does not, however, entitle him to the application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Moreover, the Court may not
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“construct arguments or theories for [Plaintiff] in the absence of any discussion of those
issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
IV.

PLAINTIFF’S EIGHTH AMENDMENT CLAIM

The Eighth Amendment protects against the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. This protection encompasses “deliberate
indifference” by prison officials to a prisoner’s serious medical needs. Howard v. Waide,
534 F.3d 1227, 1235 (10th Cir. 2008) (citing Estelle v. Gamble, 429 U.S. 97, 105
(1976)).
Courts recognize two types of conduct constituting deliberate indifference. First,
a medical professional may fail to treat a serious medical condition properly. Where this
sort of conduct is alleged, the medical professional has available the defense that she
was merely negligent in diagnosing or treating the medical condition, rather than
deliberately indifferent. See, e.g., Estelle, 429 U.S. at 105–06. The second type of
deliberate indifference occurs when prison officials prevent an inmate from receiving
treatment or deny him access to medical personnel capable of evaluating the need for
treatment. See, e.g., Ramos, 639 F.2d at 575. Ordinarily, a medical professional will
not be liable for this second kind of deliberate indifference unless her role in a medical
emergency is solely to serve as a gatekeeper for other medical personnel capable of
treating the condition and she delays or refuses to fulfill that gatekeeper role due to
deliberate indifference. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000)
In either scenario or a combination thereof, an Eighth Amendment claim for
deliberate indifference involves “a two-pronged inquiry, comprised of an objective
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component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.
2006).
A.

THE OBJECTIVE COMPONENT

The objective component requires a showing that the prisoner’s medical need is
“sufficiently serious” to be cognizable under the Eighth Amendment. Hudson v.
McMillian, 503 U.S. 1, 9 (1992); Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). This standard is met if the medical need was “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.” Ramos v. Lamm, 639
F.2d 559, 575 (10th Cir. 1980) (quotation and citation omitted). The question is not
limited to whether the inmate’s symptoms render a medical need sufficiently serious, but
also extends to whether the potential harm to the inmate is sufficiently serious. Mata v.
Saiz, 427 F.3d 745, 752 (10th Cir. 2005). The Tenth Circuit has recognized that some
sexual conditions are sufficiently serious, but “the mere fact that the a [plaintiff is a]
convicted sexual offender does not mean that [he has a] psychological disorder[] or that
[he is] in need of psychiatric treatment.” Riddle v. Mondragon, 83 F.3d 1197, 1204
(10th Cir. 1996); Diaz v. Lampela, 601 F. App'x 670, 674 (10th Cir. 2015).
Plaintiff’s allegations are insufficient to support the objective component of an
Eighth Amendment Claim. Neither his alleged mental nor physical needs are
“sufficiently serious” to be cognizable. To begin, his Amended Complaint contains no
allegations suggesting that his mental needs—mental anguish, desire to act out
sexually, and urges to masturbate—have been diagnosed by a physician as mandating
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treatment. Nor does he allege that these needs are so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention. Moreover, Plaintiff does
not aver that treatment for his sexual impulses is medically necessary (as opposed to
being a requirement for his parole), or that designation of the kitchen area as being a
high risk area was the result of a medical assessment. See Conkleton v. Zavaras, No.
08-cv-02612-WYD-MEH, 2010 WL 936069 (D. Colo. Mar. 15, 2010) (finding that plaintiff
failed to adequately plead the objective prong where complaint failed to allege a
diagnosis by a physician that plaintiff needed sex offender treatment). Indeed, the
Tenth Circuit has rejected allegations that raise similar concerns, such as a disposition
to re-offend (i.e. sexually act out), Diaz, 601 F. App’x at 674, and “[v]ague allegations of
eroded self-esteem, apathy, fear[,] . . . feelings of differentness,” and a risk of sexually
compulsive drives, Riddle, 83 F.3d at 1204.
Plaintiff’s allegation that he also experiences “physical manifestations” of his
mental pain—his back pain and rash—does not save his complaint. Plaintiff does not
describe, with particularity, the nature of his physical pain except to generally state that
he experiences it and to allege, in a conclusory manner, that his needs constitute
medical conditions. Plaintiff also does not aver that his physical needs have been
medically diagnosed or that they are patently obvious to the outside observer.
It also does not appear to this Court that the potential harm to Plaintiff is
sufficiently serious. Indeed, he has been removed from kitchen duty, and his Amended
Complaint contains nothing more than conclusory assertions that he still experiences
“aches and pains” and that he is being subjected to “pain and suffering.” (Doc. # 10 at
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4–5.) Such general allegations are insufficient to support that his medical needs are
sufficiently serious.
Plaintiff has accordingly failed to adequately plead the objective component of a
deliberate indifference claim.
B. SUBJECTIVE COMPONENT
Under the subjective component, a plaintiff must demonstrate that the defendant
had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (citation omitted); see also Self, 439 F.3d at 1230–31. Specifically, the plaintiff
must establish that the defendant “knew he faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures to abate it.” Hunt v.
Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (internal citation and quotation omitted).
“The question is: ‘were the symptoms such that a prison employee knew the risk to the
prisoner and chose (recklessly) to disregard it?’” Martinez v. Beggs, 563 F.3d 1082,
1089 (10th Cir. 2009) (quoting Mata, 427 F.3d at 753). This is a high standard.
“[N]egligent failure to provide adequate medical care, even one constituting medical
malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t of
Corrs., 165 F.3d 803, 811 (10th Cir. 1999); Vasquez, 2015 WL 6662921, at *7. Nor
does disagreement with a medical professional state a constitutional violation. Id.
Here, the Court’s primary inquiry is whether Plaintiff has adequately plead that
Ms. Seitz knew or should have known about the risk of being in the kitchen to Plaintiff’s
medical condition and nonetheless chose to disregard that risk. The Court concludes
that Plaintiff’s allegations are insufficient to support the subjective component of an
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Eighth Amendment claim. Plaintiff’s Amended Complaint does not state that he told Ms.
Seitz about the mental anguish and physical problems he was experiencing from being
placed in the kitchen. Nor does his Amended Complaint mention any symptoms that
would be obvious to an outside observer. The only allegation regarding Ms. Seitz’s
subjective understanding of Plaintiff’s condition suggests that, although she knew that
the kitchen was a high risk area for Plaintiff, she was not aware that Plaintiff was
experiencing any negative symptoms; instead, she believed him to be “doing ok in the
kitchen” and using the tools he has learned to succeed in that “high risk area.” (Doc. #
10 at 5.)
For the first time in his Objection to Magistrate Judge Varholak’s
Recommendation, Plaintiff asserts that he sent “kites” to Ms. Seitz “about the issues in
the kitchen and problems he was having,” that he talked to her numerous times about
the issues, and that he has “approximately five staff members . . . [and] eleven
offenders” that could testify to her “total disregard to the problems [he] was having and
the pain [he is] still in from the kitchen. (Doc. # 44 at 2.) Plaintiff did not, however,
mention these kites or any statements of these witnesses in his Amended Complaint or
prior pleadings. This Court need not, therefore, consider them for purposes of a Rule
12(b)(6) motion to dismiss. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996) (arguments raised for the first time in an objection are deemed waived).
Even if the Court were to consider these allegations, they are still insufficient to
support the subjective component of a deliberate indifference claim. Indeed, Plaintiff’s
assertions that he communicated his medical needs to Ms. Seitz are confusing in light
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of his previous allegation that Ms. Seitz assessed him to be handling the kitchen well.
That she considered Plaintiff to be doing “ok” in the “high risk” area suggests either that
(1) Ms. Seitz did not actually receive Plaintiff’s complaints as he purports; or (2) she
evaluated those complaints and nonetheless observed him to be fine. Neither of these
scenarios demonstrates deliberately indifferent conduct. Even if Ms. Seitz’s
assessment of his condition was mistaken, such a mistake would at most suggest
negligent behavior, which is insufficient to support an Eighth Amendment claim. See
e.g., Estelle, 429 U.S. at 105–06.
Ultimately, Plaintiff’s claim rests on his disagreement with Ms. Seitz’s
assessment that he was doing “ok.” But mere disagreement is insufficient to support a
claim of constitutional dimensions. Indeed, to sufficiently plead an Eighth Amendment
claim, Plaintiff must allege “deliberate refusal to provide medical attention, as opposed
to a particular course of treatment.” Plaintiff has not met this standard. Fleming v.
Uphoff, et. al., No. 99-8035, 2000 WL 374295, at *2 (10th Cir. April 12, 2000) (internal
quotations omitted); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (“[W]hether one
course of treatment is preferable to another [is] beyond the [Eighth] Amendment’s
purview.”).
Plaintiff also argues in his Objection that (1) he told other individuals about his
problems in the kitchen and (2) various other inmates can attest to the importance of
avoiding high risk areas. He attaches several affidavits to support this latter point.
These arguments are not only waived, but also, they are irrelevant. The fact that other
people may have been aware of Plaintiff’s problems in the kitchen does not mean that
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Ms. Seitz also was or should have been aware of those problems. Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir. 1999) (plaintiff must establish that defendant had a
sufficiently culpable state of mind).
Thus, viewing Plaintiff’s factual allegations in the Amended Complaint in the light
most favorable to him, the Court cannot conclude that Plaintiff has sufficiently pled that
Ms. Seitz knew or should have known that he faced a substantial risk of harm and
deliberately disregarded it. In other words, Plaintiff has failed to sufficiently plead the
subjective prong of an Eighth Amendment claim.
Because Plaintiff has failed to plead both the objective and subjective
components of an Eighth Amendment violation, the Court agrees with Magistrate Judge
Varholak that Plaintiff’s Claim One against Defendant Seitz should be dismissed.
Magistrate Judge Varholak did not recommend whether this Court should dismiss
Claim One with or without prejudice. “[D]ismissal with prejudice is only appropriate
‘where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.’” Oxendine v. Kaplan, 241 F.3d
1272, 1275 (10th Cir.2001); see Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010)
Based on the totality of circumstances present in this case, including (1)
Plaintiff’s inability to demonstrate both the objective and subjective components of a
deliberate indifference claim and (2) that Plaintiff’s proposed additions to Claim One, as
noted above, would not render a different outcome, the Court finds that Plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him the opportunity to
amend. Thus, dismissal with prejudice is appropriate.
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V.

PLAINTIFF STATE LAW CLAIM

Where a district court has dismissed all claims over which it has original
jurisdiction, 28 U.S.C.A. § 1367(c)(3) expressly authorizes the court to decline to
exercise supplemental jurisdiction over the remaining state-law claims. 28 U.S.C.A. §
1367(c)(3). Whether to exercise supplemental jurisdiction under such circumstances
lies within the discretion of the court. Medina v. City of Osawatomie, 992 F.Supp. 1269,
1279 (D. Kan.1998). “Discretion to try state law claims in the absence of any federal
claims should only be exercised in those cases in which, given the nature and extent of
pretrial proceedings, judicial economy, convenience, and fairness would be served by
retaining jurisdiction. Id. (citing Thatcher Enter. v. Cache Corp., 902 F.2d 1472, 1478
(10th Cir. 1990)). As a general rule, the balance of factors to be considered will point
towards declining to exercise jurisdiction over state-law claims when the federal claims
have been eliminated prior to trial. Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350
n. 7 (1988). “Notions of comity and federalism demand that a state court try its own
lawsuits, absent compelling reasons to the contrary.” Thatcher Enter., 902 F.2d at
1478; Sauer v. McGraw-Hill Companies, Inc., No. 99 N 1898, 2001 WL 1250099, at *18
(D. Colo. June 12, 2001).
In light of this Court’s dismissal of Plaintiff’s Claim One, no federal claims remain
in this case. The Court finds that there exists no compelling reason to exercise
supplemental jurisdiction over the remaining state law claim (Claim Two) and therefore
declines to do so.

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VI.

CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiff Charles J. Stout’s Objection to the Recommendation is
OVERRULED. (Doc. # 44.)
2. The Recommendation of Magistrate Judge Varholak is AFFIRMED AND
ADOPTED as an Order of this Court. (Doc. # 43.)
3. Defendants’ Motions to Dismiss Plaintiff’s Amended Complaint are
GRANTED. (Doc. ## 22, 24.)
4. Plaintiff’s Eighth Amendment Claim against Defendant Seitz (Claim One) is
DISMISSED WITH PREJUDICE.
5. The Court declines to exercise supplemental jurisdiction over Plaintiff’s
negligence claim against all Defendants (Claim Two) and it is therefore
DIMISSED WITHOUT PREJUDICE.
Because there are no remaining claims or Defendants in this case, the Court
ORDERS that this action is DISMISSED.
DATED: June 13, 2018

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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