Hancock v. El Paso County Sheriff et al

Filing 83

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 47 MOTION for Leave to Amend Complaint filed by Kristopher Hancock, by Magistrate Judge N. Reid Neureiter on 4/04/2019. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02255-RM-NRN
KRISTOPHER HANCOCK,
Plaintiff,
v.
CIRBO, Captain,
PORSHA, Sargent,
Defendants.
REPORT AND RECOMMENDATION ON
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
(DKT. #47)
N. Reid Neureiter
United State Magistrate Judge
This case is before the Court pursuant to an Order (Dkt. #56) issued by Judge
Raymond P. Moore referring pro se 1 Plaintiff Kristopher Hancock’s Motion for Leave to
Amend Complaint. (Dkt. #47.) The Court held a hearing on March 7, 2019 on the
various motions filed by Mr. Hancock, including the subject motion. (Dkt. #67.) The
Court has taken judicial notice of the Court’s file, considered the applicable Federal
Rules of Civil Procedure and case law, and makes the following recommendation.

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The Court must construe the filings of pro se litigants liberally. 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 be the pro se litigant’s advocate, nor should the Court
“supply additional factual allegations to round out [the pro se litigant’s] complaint or
construct a legal theory on [his] behalf.” See Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must
follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d
1276, 1277 (10th Cir. 1994).

I. BACKGROUND
Mr. Hancock initiated this prisoner civil rights case on September 19, 2017. His
original complaint asserted claims under 42 U.S.C. § 1983 and 28 U.S.C. § 1343
against eight defendants, alleging violations of his rights under the First, Eighth, and
Fourteenth Amendments after he was denied kosher meals and forced to shave his
beard while incarcerated at the El Paso County Jail and the Denver Reception and
Diagnostic Center (“DRDC”), a facility operated by the Colorado Department of
Corrections (“CDOC”). (See generally Dkt. #1.) On November 3, 2017, Magistrate
Judge Gordon P. Gallagher directed Mr. Hancock to file an amended prisoner complaint
that adequately asserted personal participation by all named defendants. (Dkt. #10.) Mr.
Hancock filed an Amended Prisoner Complaint (the “Complaint”) on December 5, 2017,
asserting claims against four defendants. (Dkt. #11.) On December 11, 2017, Judge
Gallagher issued a Second Order Directing Plaintiff to File Amended Complaint (Dkt.
#12), wherein he instructed Mr. Hancock to further amend his Complaint to properly
allege personal participation as to the individual defendants and municipal liability
against El Paso County. (Dkt. #12.) Mr. Hancock failed to file a Second Amended
Complaint within the time allowed. Rather than dismissing the entire action, Judge
Lewis T. Babcock dismissed Mr. Hancock’s claims against two defendants, and the
remaining claims against Defendants Porcher and Cirbo were drawn to Judge Moore
and Magistrate Judge Watanabe. (Dkt. #13.) When Magistrate Judge Watanabe retired,
the case was assigned to me. (Dkt. #33.)
On April 4, 2018, Defendants moved to dismiss Mr. Hancock’s Amended
Complaint. (Dkt. #23.) In his response to that motion (Dkt. #30), Mr. Hancock explained

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that his Eighth Amendment claim is based on unsanitary conditions and inadequate
medical care. Mr. Hancock claims he had a scabies infestation that was not properly
diagnosed or treated.
On December 14, 2018, the Court recommended that Mr. Hancock’s First
Amendment claim predicated on the denial of kosher meals should go forward, but that
the First Amendment claim related to the shaving of Mr. Hancock’s beard, the Eighth
Amendment claim described above, and the claim brought pursuant to the Fourteenth
Amendment should be dismissed. (Dkt. #36.) While Mr. Hancock objected to that
Report and Recommendation, he conceded that, besides the First Amendment claim
that survived, he had failed to state any other plausible claim. (Dkt. #38.) Instead, he
argued that he should be permitted to amend his Complaint. Thus, on February 19,
2019, Mr. Hancock moved to file a Second Amended Complaint. (Dkt. #47.) Defendants
objected to the motion, arguing that it was both untimely and futile. They also pointed
out that Mr. Hancock did not comply with D.C.COLO.LCivR 15.1(b) because he did not
include a proposed Second Amended Complaint.
On March 7, 2019, the Court heard argument on this and other motions filed by
Mr. Hancock and took the motion to amend under advisement. (Dkt. #67.) Mr. Hancock
was ordered to reply to Defendants’ response no later than March 26, 2019. (Id.)
Instead of filing a reply, Mr. Hancock filed a proposed Second Amended Complaint,
which the Court will discuss below.
On March 26, 2019, Judge Moore adopted in full the undersigned’s December
14, 2018 Report and Recommendation. (Dkt. #75.) However, Mr. Hancock’s motion to
amend remains at issue.

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II. ANALYSIS
Pursuant to the Scheduling Order entered by Judge Watanabe on May 31, 2018,
the deadline for the amendment of pleadings was June 8, 2018. (Dkt. #28 at 8.) The
subject motion was filed more than eight months after the expiration of this deadline.
“After a scheduling order deadline, a party seeking leave to amend must
demonstrate (1) good cause for seeking modification under [Rule 16(b)(4),] and (2)
satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank
Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014).
Rule 16(b)(4) provides that a scheduling order “may be modified only for good
cause and with the judge’s consent.” See Fed. R. Civ. P. 16(b)(4). The “good cause”
standard requires the moving party to show that despite its diligent efforts, it could not
have reasonably met the scheduled deadline. See Pumpco, Inc. v. Schenker Int’l, Inc.,
204 F.R.D. 667, 668 (D. Colo. 2001). This standard is more stringent that the lenient
standard contained in Rule 15(a).
Rule 16(b) does not focus on the bad faith of the movant, or the prejudice
to the opposing party. Rather, it focuses on the diligence of the party
seeking leave to modify the scheduling order to permit the proposed
amendment. Properly construed, “good cause” means that scheduling
deadlines cannot be met despite a party’s diligent efforts. In other words,
this court may “modify the schedule on a showing of good cause if [the
deadline] cannot be met despite the diligence of the party seeking the
extension.” Carelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.
Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp. 959 (D.S.C. 1997), aff’d,
129 F.3d 116 (4th Cir. 1997)). Although “good cause” under Rule 16(b)(4) may be met if
a plaintiff learns new information from discovery, “[i]f the plaintiff knew of the underlying
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conduct but simply failed to raise [his claims] . . . the claims are barred.” Gorsuch, Ltd.,
771 F.3d at 1240. “[T]he application of Rule 16(b)’s good-cause standard is not
optional.” Perez v. Denver Fire Dep’t, 243 F. Supp. 3d 1186, 1199 (D. Colo. 2017), aff’d,
724 F. App’x 646 (10th Cir. 2018) (quoting Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 715 (8th Cir. 2008)).
At the second step, pursuant to Rule 15(a)(2), a party may amend its pleading
with the opposing party’s consent or leave of Court, with the Court “freely giv[ing] leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). This standard means that leave to
amend is not justified when there has been “undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or the futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir. 1993). “Untimeliness alone is a sufficient reason to deny leave to
amend, especially when the party filing the motion has no adequate explanation for the
delay.” Id. (citations omitted). “A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (quotation and internal quotation omitted).
Defendants argue that Mr. Hancock’s motion to amend should be denied for lack
of good cause shown, and as untimely and futile. The Court agrees.
First, Mr. Hancock has failed to demonstrate that, through no fault of his own and
despite his diligent efforts, he could not have amended his Complaint prior to the June
8, 2018 deadline. His proposed Second Amended Complaint restates claims originally
brought against Defendants Cirbo and Porcher, and asserts additional claims against
them and Jamie Harrison, a nurse practitioner, and Amass Afrifa, a registered nurse.

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However, the facts giving rise to these claims are not newly discovered. It is
indisputable that everything recounted in the proposed Second Amended Complaint
occurred prior to September 19, 2017, the date this lawsuit was initiated, including the
allegations now asserted against Defendants Harrison and Afrifa regarding his scabies
treatment. On May 2, 2018, Mr. Hancock submitted a Statement of Claims and
Defenses that was subsequently incorporated into the Court’s Scheduling Order. (Dkt.
#28 at 2-4.) In this statement, Mr. Hancock described how he developed a rash that
turned out to be scabies, and how staff treated that rash with Benadryl shots, which Mr.
Hancock described as torture. He also described how his grievances were ignored,
which is another basis for a portion of his Second Amended Complaint.
Mr. Hancock did not include these allegations in any pleading, and it was not for
lack of opportunity. He was given several chances to cure deficiencies in his Complaint.
Judge Gallagher ordered him to amend his Complaint twice; he did not do so the
second time. After Defendants moved to dismiss his claims, Mr. Hancock did not file a
response and the Court had to sua sponte order him to do so. (Dkt. #25.) Mr. Hancock
could have sought leave to amend at that time to remedy the shortcomings described in
the motion to dismiss. He did not do so. Instead, he waited until after the motion was
fully briefed, a hearing had been held, and a Report and Recommendation issued to
seek leave of Court to further amend his Complaint.
Mr. Hancock’s stated excuses for this delay are not persuasive. He claims that
he did not have sufficient access to the law library while he was incarcerated at the
Colorado State Penitentiary (“CSP”), that Defendants did not provide him with
meaningful discovery, and that he did not understand the Scheduling Order given his

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pro se status. Even if Mr. Hancock did not understand the required elements of each
claim for relief or know the correct legal terms of art, however, none of the cited
circumstances precluded Mr. Hancock from providing the Court and Defendants with
the facts upon which such claims were based. It is unquestionable that Mr. Hancock
was aware of those facts but did not raise them until eight months after the deadline to
do so passed. As a result, he is now precluded from adding them to his Complaint at
this late date. Accordingly, the Court recommends that Mr. Hancock’s motion to amend
be denied under Rule 16(b).
Furthermore, even if Mr. Hancock had demonstrated good cause to amend his
Complaint outside the time provided in the Scheduling Order, his proposed Second
Amended Complaint would be subject to dismissal on the grounds of futility.
As the Court explained in its Report and Recommendation, the doctrine of
qualified immunity forecloses any liability based on the initial shaving of Mr. Hancock’s
beard because that action did not violate clearly established law. (Dkt. #36 at 12-14.)
Mr. Hancock points to a CDOC administrative regulation (AR-850-07) that apparently
states that “if an offender’s hairstyle or beard is a verified fundamental faith tent
recognized by the DOC the offender will be allowed to maintain his or her hair style.”
(Dkt. #73 ¶ 44.) However, an administrative regulation does make any right “clearly
established.” See Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for
constitutional violations do not lose their qualified immunity merely because their
conduct violates some statutory or administrative provision.”) Instead, the Tenth Circuit
requires “that for a rule to be clearly established, there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other

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courts must have found the law to be as the plaintiff claims.” Casey v. City of Federal
Heights, 509 F.3d 1278, 1284 (10th Cir. 2007). Mr. Hancock has not met his burden in
demonstrating that it is clearly established that shaving an offender’s religiouslyrequired beard upon arrival at a correctional facility, but thereafter allowing him to grow
it, substantially burdens his religious exercise. Accordingly, Defendants would be
entitled to qualified immunity, and Mr. Hancock’s claims based on this theory are futile.
Mr. Hancock’s claims regarding the grievance process are likewise unavailing.
Mr. Hancock contends that because offenders are at the DRDC only a short time, the
facility has a “special filing process” for inmate grievances: “in the trash.” He claims this
violates his due process rights. However, “there is no independent constitutional right to
state administrative grievance procedures.” Boyd v. Werholtz, 443 F. App’x 331, 332
(10th Cir. 2011). “Nor does the state’s voluntary provision of an administrative grievance
process create a liberty interest in that process.” Id. Thus, “[a] viable due process claim
cannot rest on allegations of an unfair or inadequate grievance process.” Burnett v.
Allbaugh, 715 F. App’x 848, 852 (10th Cir. 2017).
Finally, Mr. Hancock cannot state an Eighth Amendment deliberate indifference
claim against any of the Defendants. As Judge Moore recently explained,
Eighth Amendment protections extend to injuries caused by prison
officials’ “deliberate indifference to serious medical needs of prisoners.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks
omitted). A claim of deliberate indifference includes both an objective and
a subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
The objective prong examines whether the prisoner’s medical condition
was “‘sufficiently serious’ to be cognizable under the Cruel and Unusual
Punishment Clause.” Id. at 753. “The subjective prong examines the state
of mind of the defendant, asking whether ‘the official kn[e]w of and
disregard[ed] an excessive risk to inmate health or safety.’” Al-Turki v.
Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)); see also Estate of Roemer v.
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Johnson, No. 17-1418, 2019 WL 1084194, at *6 (10th Cir. Mar. 7, 2019)
(“In light of the objective and subjective elements of [the plaintiff’s] Eighth
Amendment claims, those claims accrued when he knew or had reason to
know...that [each defendant] had acted with deliberate indifference to a
known risk to [the plaintiff’s] medical needs.”).
Jaramillo v. Crain, No. 1:18-cv-0499-RM-KMT, 2019 WL 1417198, at *5 (D. Colo. Mar.
29, 2019).
Here, neither prong is satisfied. Mr. Hancock alleges that he had a rash caused
by scabies. He claims that he developed the rash while in the infirmary, and that after a
week, he was given Benadryl shots three times per day. When he was getting
discharged from the infirmary, he complained to Defendant Afrifa that his rash was
getting worse, but she simply discharged him. He then complained to Defendant
Harrelson, who said that it was not her problem. Two weeks later, he was diagnosed
with scabies and treated.
Taking these allegations as true, the Court is not convinced that the scabiescaused rash that persisted for three weeks was sufficiently serious to be cognizable
under the Eighth Amendment. Compare Troy v. Kuhlmann, No. 96 CIV. 7190 (BSJ),
1999 WL 825622, at *13 (S.D.N.Y. Oct. 15, 1999) (holding that two small rashes “are
insufficient to create an objectively serious medical need as required by the Eighth
Amendment”), with Dicino v. Renfro, No. 12-cv-01274-WYD-KLM, 2013 WL 2317242, at
*3 (D. Colo. May 28, 2013) (finding that a rash can be sufficiently serious to satisfy the
objective prong where it “(1) covered the plaintiff’s entire body; (2) was severe and
painful; (3) lasted for nine months; (4) was so obvious that a layperson would realize
medical attention was needed; and, (5) required steroids, which were prescribed, but
never given to the plaintiff.”).

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Moreover, Mr. Hancock was not, in fact, denied treatment. He concedes that he
was given Benadryl shots three times per day. While that may have been the incorrect
treatment for scabies, “a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan.
Dep’t of Corrs., 165 F.3d 803, 809 (10th Cir. 1999). And even if the prison officials’
actions fell below a reasonable standard of care, “the negligent failure to provide
adequate medical care, even one constituting medical malpractice, does not give rise to
a constitutional violation.” Sherman v. Klenke, 653 F. App’x 580, 586 (10th Cir. 2016).
Dissatisfaction, without more, does not give rise to an Eighth Amendment claim. Id.
The Court also recognizes that delay in medical care only constitutes an Eighth
Amendment violation where the plaintiff can show that the delay resulted in substantial
harm. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). Construing his
allegations liberally and in the most favorable light, Mr. Hancock has not cleared this
hurdle. Mr. Hancock received treatment (albeit ineffective) for his rash within a week,
and he was quarantined and properly treated within a month. His claim that “the entire
ordeal caused significant emotional distress, aggravated my mental condition and
caused me to experience suicidal ideations again” is not sufficiently attenuated to the
actual alleged deprivation to survive a futility analysis.
III. RECOMMENDATION
For the reasons set forth above, it is hereby RECOMMENDED that Plaintiff’s
Motion for Leave to Amend Complaint (Dkt. #47) be DENIED.

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

BY THE COURT

Date: April 4, 2019
Denver, Colorado

N. Reid Neureiter
United States Magistrate Judge

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