Cox v. Raemisch et al

Filing 50

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 2/14/19 re 30 MOTION to Dismiss. The Court respectfully RECOMMENDS that the Motion 30 be GRANTED, and that all claims against Defendants Hodge and Owens be DISMISSED without prejudice. (lgale, ) Modified on 2/14/2019 to note this is a written opinion (lgale, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00011-WJM-KLM
CHRISTOPHER COX,
Plaintiff,
v.
STEVE OWENS, Warden of Colorado State Penitentiary,
PHYSICIANS HEALTH PARTNERS INSUR., and
RICHARD HODGE, M.D.,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss [#30]1 (the “Motion”), filed
by Defendants Steve Owens (“Owens”) and Richard Hodge, M.D., (“Hodge”) (collectively,
the “CDOC Defendants”). Plaintiff Christopher Cox, who is proceeding pro se,2 filed a
Response [#32] in opposition to the Motion and the CDOC Defendants filed a Reply [#33].
Plaintiff then filed a Surreply entitled “Reply in Support of Motion in Opposition of Motion

1

“[#30]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the court’s electronic case filing and management system
(CM/ECF). This convention is used throughout the Recommendation.
2

The Court must construe liberally the filings of a pro se litigant. 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.”
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).

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to Dismiss” [#34] (the “Surreply”).3 The Motion has been referred to the undersigned for
recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#31].
The Court has reviewed the Motion, the Response, the Reply, the Surreply, the entire case
file, and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, the Court respectfully RECOMMENDS that the Motion [#30] be GRANTED.
I. Summary of the Case
Plaintiff is presently incarcerated at Arkansas Valley Correctional Facility (“AVCF”),
but throughout the period relevant to this lawsuit, he was incarcerated at Colorado State
Penitentiary (“CSP”).

Am. Compl. [#18] at 3-4; Notice of Change of Address [#8]. On

January 2, 2018, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 asserting claims
under the Eighth Amendment. See [#1]. On January 22, 2018, Plaintiff filed his Notice of
Change of Address [#8] indicating that he had been transferred to AVCF. On April 9, 2018,
Plaintiff filed his Amended Complaint [#18], the operative pleading in this case. In the
Amended Complaint, Plaintiff generally alleges that the CDOC Defendants and Defendant
Physicians Health Partners Insur. (“PHP”)4 violated Plaintiff’s Eighth Amendment right to
receive adequate medical care while incarcerated at CSP when Plaintiff’s hernia was
treated with a hernia belt and stool softeners rather than surgery. See [#18] at 3-5. The
following allegations of the Amended Complaint [#18] are accepted as true for purposes
3

Plaintiff filed the Surreply [#34] without properly seeking leave of the Court, i.e., by filing
a separate motion. Although the filing of surreplies is not contemplated by the Federal Rules of
Civil Procedure or the Court’s Local Rules, out of an abundance of fairness to Plaintiff, the Court
has considered the arguments in his Surreply.
4

This Recommendation does not address Defendant PHP, who was only recently served
on January 8, 2019. See Summons Returned Executed [#47]. Defendant PHP has not yet
responded to Plaintiff’s Amended Complaint [#18]. Thus, the Recommendation does not address
Plaintiff’s Eighth Amendment claim against Defendant PHP.

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of determining the Motion [#30]. See Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir.
2015).
According to Plaintiff, he “developed a hernia while incarcerated at CSP[ ] which
causes him significant pain and numbness in his upper thigh.” Am. Compl. [#18] at 3.
Defendant Hodge, a physician at CSP, initially recommended surgery to treat Plaintiff’s
hernia. Id. However, Plaintiff alleges that Defendant Hodge ultimately refused to perform
the surgery because Defendant PHP, the healthcare provider at CSP, has a policy which
deems hernia surgery as an elective procedure unless the hernia is strangulated or
incarcerated. Id. Plaintiff does not allege that his hernia was either strangulated or
incarcerated. See generally id. at 3-5. Instead of surgery, Plaintiff began receiving
treatment in the form of a hernia belt and stool softeners in September of 2016. Id. at 3
Plaintiff alleges that this treatment was “ineffective to alleviate his pain and that his
condition has worsened.” Id. No facts have been alleged concerning Plaintiff’s medical
treatment since his transfer to AVCF in January of 2018. See generally id. at 3-5; Notice
of Change of Address [#8].
Based on the facts alleged, Plaintiff asserts an Eighth Amendment claim against all
Defendants for violating his right to receive adequate medical care. Am. Compl. [#18] at
4-5. With respect to Defendant Hodge, Plaintiff alleges that Defendant Hodge was
“involved directly in the choice to stall necessary surgery and prolong the Plaintiff’s pain.”
Id. at 4. Regarding Defendant Owens, the Warden at CSP, Plaintiff asserts that Defendant
Owens’ liability is premised on the fact that Plaintiff’s mother sent Defendant Owens a letter
concerning Plaintiff’s condition which, according to Plaintiff, gave Defendant Owens
“sufficient notice to alert him to a violation of law.” Id. at 5. Plaintiff appears to assert his
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Eighth Amendment claim against Defendants Hodge and Owens both in their individual and
official capacities. Id. at 2, 4, 5. The claim against Defendant Owens in his individual
capacity was dismissed with prejudice on April 18, 2018, pursuant to 28 U.S.C. §
1915(e)(2).5 See Order [#19] at 5. Plaintiff seeks monetary damages and injunctive relief.
Am. Compl. [#18] at 3, 7.
The CDOC Defendants filed the instant Motion on June 22, 2018, seeking to dismiss
the remainder of Plaintiff’s claims against them pursuant to Fed. R. Civ. P. 12(b)(1) and
Fed. R. Civ. P. 12(b)(6). [#30] at 1. Specifically, the CDOC Defendants argue that
Plaintiff’s Eighth Amendment claim against Defendant Hodge in his individual capacity
should be dismissed on the grounds of qualified immunity and failure to state a claim. Id.
at 4-10. Further, the CDOC Defendants argue that Plaintiff’s Eighth Amendment claim
against Defendants Hodge and Owens in their official capacities should be dismissed on
the grounds of mootness. Id. at 10-11.
II. Standard of Review
A.

Federal Rule of Civil Procedure 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the

Court has jurisdiction to properly hear the case before it. Because “federal courts are
courts of limited jurisdiction,” the Court must have a statutory basis to exercise its
jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P.
12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly

5

Plaintiff’s claim against Defendant Owens in his individual capacity was dismissed with
prejudice because Plaintiff failed to show specific facts that Defendant Owens was personally
involved in the decisions concerning Plaintiff’s medical treatment. See Order [#19] at 5.

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construed. F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden
of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Id. (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or
factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing
a facial attack on a complaint, the Court accepts the allegations of the complaint as true.
Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not
presume the truthfulness of the complaint’s factual allegations.” Id. at 1003. With a factual
attack, the moving party challenges the facts upon which subject matter jurisdiction
depends. Id. The Court therefore must make its own findings of fact. Id. In order to make
its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d
257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987)). The Court’s reliance on
“evidence outside the pleadings” to make findings concerning purely jurisdictional facts
does not convert a motion to dismiss pursuant to Rule12(b)(1) into a motion for summary
judgment pursuant to Rule 56. Id.
B.

Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the

sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not to
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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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible
on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 570); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200
(10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide
‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s allegations.”
(quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Id. (brackets in original and internal
quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.” Christy
Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” a factual allegation has been stated, “but it has not show[n][ ]that the pleader
is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks omitted).
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C.

Qualified Immunity
Qualified immunity, in certain circumstances, protects government officials from

litigation when they are sued in their individual capacities. See, e.g., Harlow v. Fitzgerald,
457 U.S. 800, 814-18 (1982). A government official is entitled to qualified immunity from
liability for civil damages when his or her allegedly unlawful conduct did not violate any of
the plaintiff’s statutory or constitutional rights that (1) were “clearly established” at the time
of the conduct, and (2) would have been known to a reasonable person in the official’s
position. Harlow, 457 U.S. at 818. A government official is entitled to qualified immunity
in “[a]ll but the most exceptional cases.” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591,
595 (11th Cir. 1997).
The threshold inquiry is whether the facts taken in the light most favorable to the
plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201
(2001).

“If no constitutional right would have been violated were the allegations

established, there is no necessity for further inquiries concerning qualified immunity.” Id.
However, “if a violation could be made out on a favorable view of the parties’ submissions,”
a court must “ask whether the right was clearly established.” Id.; see also Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination
involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further
analysis need be undertaken and qualified immunity is appropriate).
III. Analysis
A.

Eighth Amendment Claim Against Defendant Hodge in his Individual Capacity
Defendant Hodge asserts an entitlement to qualified immunity in the Motion, thus

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the Court will first examine whether Plaintiff’s Eighth Amendment claim against Defendant
Hodge in his individual capacity should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
Butler v. Rio Rancho Pub. Sch. Bd. Of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003) (“Since
the [defendant] raised the defense of qualified immunity in its motion to dismiss, we first
examine whether the [plaintiff] asserted a violation of federal law in their complaint.”); see
also Motion [#30] at 3-4.
The defense of qualified immunity is available to: (1) individual governmental
officials, but not governmental entities; (2) regarding claims for monetary damages, but not
claims for injunctive or declaratory relief; and (3) regarding claims against individual
government officials in their individual capacities, not official capacities. Rome v. Romero,
225 F.R.D. 640, 643 (D. Colo. Nov. 22, 2004). When a defendant raises qualified immunity
in a Rule 12(b)(6) motion to dismiss, the Court employs a two-step process. One part of
the inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently
allege a constitutional violation. Saucier, 533 U.S. at 201. The other inquiry is to determine
if there was a clearly established right. Id. In the Motion, Defendant Hodge argues that
Plaintiff has not stated a plausible violation of his Eighth Amendment constitutional right to
appropriate medical care. [#30] at 2-3. Accordingly, the Court proceeds to examine the
sole individual capacity claim for monetary damages against Defendant Hodge.
1.

Failure to State an Eighth Amendment Violation

The Eighth Amendment of the United States Constitution provides that “cruel and
unusual punishments” shall not be inflicted. U.S. Const. amend. VIII. Punishments that
“involve the unnecessary and wanton infliction of pain” violate this provision. Gregg v.
Geogia, 428 U.S. 153, 173 (1976). Because prisoners “must rely on prison authorities to
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treat [their] medical needs,” Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court
has held that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. at
104 (quoting Gregg, 428 U.S. at 173). The test of deliberate indifference is both objective
and subjective: a prisoner must establish that he was deprived of a medical need that is,
objectively, “sufficiently serious,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), and that
the defendant subjectively knew of and disregarded “an excessive risk to [the prisoner’s]
health or safety.” Id. at 837.
a.

Objective Prong: Sufficiently Serious Condition

As to the objective component, the Court considers whether Plaintiff’s harm suffered
“rises to a level ‘sufficiently serious’ to be cognizable under the Cruel and Unusual
Punishment Clause” of the Eighth Amendment. Mata v. Saiz, 427 F.3d 745, 752-53 (10th
Cir. 2005). A medical need is “sufficiently serious if it is one that has been diagnosed by
a physician as mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Id. at 751 (citation and internal
quotation marks omitted).
Here, Plaintiff alleges that Defendant Hodge diagnosed Plaintiff’s hernia and initially
recommended surgery in 2016. Am. Compl. [#18] at 3. Although Plaintiff did not receive
surgery because his hernia was neither strangulated nor incarcerated, Plaintiff did receive
treatment in the form of a hernia belt and stool softeners. Id. at 3, 5. For purposes of the
Motion, Defendants appear to concede the objective prong by stating that they “do not
dispute that hernias generally require a medical professional’s treatment.” [#30] at 7.
Therefore, based on Defendants’ concession and the facts alleged by Plaintiff regarding
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his hernia diagnosis and treatment, the Court finds that Plaintiff alleges a sufficiently
serious medical condition for the purposes of his deliberate indifference claim.
b.

Subjective Prong: Knowledge and Disregard of Excessive Risk

Turning to the subjective prong of the test for deliberate indifference, Plaintiff must
allege that Defendant Hodge “kn[ew] of and disregard[ed] an excessive risk to [Plaintiff’s]
health and safety.” Farmer, 511 U.S. at 837. A defendant knows of and disregards an
excessive risk to a prisoner’s health and or safety when he is both “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,” and he
actually draws that inference. Id. Importantly, “it is obduracy and wantonness, not
inadvertence or error in good faith,” that characterize the conduct prohibited by the Cruel
and Unusual Punishment Clause. Whitley v. Albers, 475 U.S. 312, 319 (1986).
Neither negligence in diagnosis or treating a condition, nor medical malpractice rises
to the level of an Eighth Amendment violation for deliberate indifference. See Green v.
Branson, 108 F.3d 1296, 1303 (10th Cir. 1997). While a plaintiff’s disagreement with the
course of treatment employed by prison medical staff may “amount[ ] to a medical
malpractice claim cognizable in state court . . . a medical malpractice claim does not
become a constitutional violation simply because the plaintiff is a prisoner.” Pearson v.
Simmons, No. 95-3006-GTV, 1998 WL 154552, at *2 (D. Kan. Mar. 17, 1998) (citations
omitted).
Accordingly, a prisoner does not have a valid claim of deliberate indifference simply
because he was denied a “particular course of treatment” that he desired. Callahan v.
Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006). “[A] prison doctor remains free to exercise
his or her independent professional judgment,” id. (citing Dulany v. Carnahan, 132 F.3d
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1234, 1240 (8th Cir. 1997)), and “[m]edical decisions that may be characterized as ‘classic
examples of matters for medical judgment,’ such as whether one course of treatment is
preferable to another, are beyond the [Eighth] Amendment’s purview.” Id. (citing Snipes
v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996)). This is because a “prisoner’s right is to
medical care -- not to the type or scope of medical care which he personally desires.”
Henderson v. Sec’y of Corr., 518 F.2d 694, 695 (10th Cir. 1975). An inmate’s difference
of opinion concerning the medical treatment that he receives does not generally support
a claim for cruel and unusual punishment. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.
1993). In sum, Plaintiff must demonstrate “deliberate refusal to provide medical attention,
as opposed to a particular course of treatment.” Fleming v. Uphoff et al., 210 F.3d 289,
2000 WL 374295, at *2 (10th Cir. Apr. 12, 2000) (unpublished table decision) (quoting
Green, 108 F.3d at 1303).
Here, Plaintiff alleges that Defendant Hodge violated Plaintiff’s Eighth Amendment
right to receive adequate medical care by providing Plaintiff with a hernia belt and stool
softeners in accordance with PHP’s policy regarding hernias rather than performing surgery
as Defendant Hodge had initially recommended. Am. Compl. [#18] at 3. In the Motion,
Defendants argue that this allegation demonstrates that Defendant Hodge neither
disregarded an excessive risk to Plaintiff’s safety nor failed to treat Plaintiff’s condition
outright given that Defendant Hodge did provide medical treatment. [#30] at 7-8. The Court
agrees.
Defendant Hodge’s diagnosis of Plaintiff’s hernia and initial recommendation for
surgery demonstrate that he knew of Plaintiff’s condition. Moreover, given that Defendant
Hodge did provide Plaintiff with two forms of treatment, it does not appear that he
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consciously disregarded the risk to Plaintiff’s health despite the fact that he did not perform
the surgery that was initially recommended. Thus, Plaintiff alleges no facts to demonstrate
that Defendant Hodge subjectively knew that the hernia belt and stool softeners were an
inadequate form of treatment, placing Plaintiff at a substantial risk of serious harm. See
Farmer, 511 U.S. at 837.
In his Response and Surreply, Plaintiff argues that the hernia belt and stool
softeners were an inadequate form of treatment because hernias “cannot be cured with
anything other than surgery.” [#32] at 7; see also [#34] at 8, 10-11. Contrary to Plaintiff’s
assertion, several courts have recognized that delaying surgery and opting for hernia belts
is an appropriate form of hernia treatment that does not amount to deliberate indifference.
See, e.g., Karsten v. Camacho, P.A., 595 F. App’x 835, 837 (10th Cir. 2014) (finding that
the plaintiff failed to state a claim for deliberate indifference where he was treated with a
hernia belt and placed on light duty before his hernia became incarcerated); Jackson v.
Jackson, 465 F. App’x 813, 814-15 (11th Cir. 2012) (noting the “common medical practice
to postpone surgery until a hernia becomes strangulated”); Winslow v. Prison Health
Servs., 406 F. App’x 671, 674-75 (3d Cir. 2011) (citing evidence in the record that “the
standard treatment for an inguinal hernia was non-surgical”); Denmark-Wagner v. Correct
Care Sol., No. 12-3169, 2013 WL 161192, at *2 (D. Kan. Jan. 15, 2013) (“Plaintiff’s bald
allegation -- that surgery is the appropriate medical standard and proscribed treatment -is insufficient to establish that the treatment being provided is constitutionally inadequate.”).
Although Plaintiff may have preferred surgery over the treatment he received, the
denial of a preferred course of treatment does not constitute deliberate medical
indifference. See Callahan, 471 F.3d at 1160. As stated above, Plaintiff has a right to
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medical care, not the type he personally desires. See Henderson, 518 F.2d at 695. In
Karsten v. Camacho, P.A., the Tenth Circuit addressed similar circumstances. 595 F.
App'x at 837. In Karsten, an inmate brought a civil rights claim for deliberate indifference
against prison medical staff. Id. at 836. The plaintiff alleged that the prison staff’s refusal
to treat his hernia with surgery before it became strangulated caused him extreme and
prolonged pain in violation of the Eighth Amendment. Id. at 837. The plaintiff was provided
with a hernia belt and placed on lifting restrictions prior to his hernia becoming strangulated.
Id. The district court held that the plaintiff had failed to state a claim, and the Tenth Circuit
affirmed on the grounds that the plaintiff had failed to meet the subjective prong of
deliberate indifference, as the surgery had been rejected by a physician assistant and
superiors in the chain of command. Id. In sum, the Tenth Circuit held that the plaintiff did
not raise a plausible claim that the physician assistant’s “failure to do more than he did
evinced deliberate indifference” to the plaintiff’s pain. Id. Accordingly, and in line with
Karsten, this Court finds that Plaintiff has failed to demonstrate that Defendant Hodge
subjectively knew of and disregarded an excessive risk to Plaintiff’s health by following a
policy under which Plaintiff was provided an acceptable form of alternative treatment for his
hernia. As alleged, Defendant Hodge’s conduct amounts to a medical judgment, which is
beyond the scope of the Eighth Amendment. See Callahan, 471 F.3d at 1160.
In his Response and Surreply, Plaintiff cites a number of cases for the proposition
“that interference with medical judgments for factors unrelated to a persons[’] medical
needs is illegal” and that failure to perform surgery against a doctor’s recommendation for
cost reasons amounts to deliberate indifference. See [#32] at 5-6 (citing West v. Atkins,
487 U.S. 42 (1988); Hamilton v. Endell, 981 F.2d 1063 (9th Cir. 1992); Jones v. Johnson,
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781 F.2d 769 (9th Cir. 1986); Wilson v. VanNatta, 291 F. Supp. 2d 811 (N.D. Ind. 2003);
Baker v. Blanchette, 186 F. Supp. 2d 100 (D. Conn. 2001); Kruger v. Jenne, 164 F. Supp.
2d 1330 (S.D. Fla. 2000); Starbeck v. Linn Cty. Jail, 871 F. Supp. 1129 (N.D. Iowa 1994)).
As an initial matter, none of the cases Plaintiff cites are binding precedent in the
Tenth Circuit with the exception of West v. Atkins, 487 U.S. 42 (1988), which does not
address the test for deliberate indifference.6 Id. at 48-57. Moreover, although many of the
cases Plaintiff cites do suggest that delaying or avoiding surgery for non-medical reasons
may premise a claim for deliberate indifference, Plaintiff fails to explain how the cases
demonstrate that Defendant Hodge, individually, acted with deliberate indifference in
diagnosing Plaintiff’s hernia and providing treatment. Notably, most of the cases Plaintiff
relies on present circumstances in which an inmate was either denied any treatment at all
or had existing treatment cancelled or disregarded for no justifiable reason. See, e.g.,
Hamilton, 981 F.2d at 1066-67 (discussing allegations that prison officials ignored treating
physician’s post-surgery travel restrictions based solely on the opinion of another physician
who had never examined the plaintiff); Kruger, 164 F. Supp. 2d at 1340 (discussing
prisoner’s allegation that he was repeatedly denied any form of treatment solely for cost
reasons); Jones, 781 F.2d at 771-72 (discussing prisoner’s allegation that he received no
treatment for his hernia because, according to one of his doctors, the county had a “tight
budget”);7 Wilson, 291 F. Supp. 2d at 816-17 (discussing prisoner’s allegation that his
6

In West v. Atkins, the Supreme Court held that a private physician employed by a state
to provide medical services at a state prison acts under color of state law for purposes of § 1983
when providing medical treatment to an inmate. 487 U.S. at 54-57; see Wittner v. Banner Health,
720 F.3d 770, 779 (10th Cir. 2013) (noting that “West is at its core a public function case”).
7

The Court notes that in 2014, the Ninth Circuit overruled Jones v. Johnson to the extent
that decision could be read to apply to monetary damages against an official who lacks authority

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medical treatment was cancelled because the prison could not afford the cost); Baker, 186
F. Supp. 2d 104-05 (holding, on summary judgment, that plaintiff produced sufficient
evidence to show that his previously authorized surgery was delayed solely because of
cost). Additionally, in the cases Plaintiff cites where a treating physicians’ conduct was at
issue, there were specific factual allegations or sufficient evidence to demonstrate that the
physician consciously disregarded the inmates’ conditions in failing to provide treatment.
See, e.g., Wilson, 291 F.Supp. 2d at 816-17; Baker, 186 F. Supp. 2d 104-05; Kruger, 164
F. Supp. 2d at 1340; Starbeck, 871 F. Supp. at 1146 (holding, on summary judgment, that
defendants failed to address nurse’s deposition testimony that indicated plaintiff’s surgery
was denied solely for cost reasons); Jones, 781 F.2d at 771-72. Here, as discussed above,
there are no allegations that Defendant Hodge made a conscious decision to disregard the
Plaintiff’s condition with inadequate treatment. See Am. Compl. [#18] at 3-4.
The Court notes that Plaintiff’s argument here appears to be directed more toward
Defendant PHP’s hernia surgery policy rather than Defendant Hodge’s conduct in response
to that policy. Plaintiff conclusory refers to Defendant Hodge as a “policy maker” at CSP
but provides no other facts as to what policy-making Defendant Hodge participated in or,
more importantly, whether Defendant Hodge had any involvement in creating PHP’s hernia
surgery policy. Id. at 4.8 To the extent that Plaintiff is alleging that Defendant Hodge
should have unilaterally performed the surgery himself, the Court agrees with Defendants

over budgeting decisions. Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014).
8

The Court further notes that, to the extent Plaintiff is suggesting that Defendant Hodge
created the hernia policy, this appears to be contradicted by Plaintiff’s allegation that Defendant
Hodge initially recommended surgery counter to the policy. Am. Compl. [#18] at 3-4.

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that this allegation does not sufficiently assert that Defendant Hodge was qualified or
authorized to do so in light of Plaintiff’s other factual allegations. See Reply [#33] at 2.
Accordingly, the Court finds that Plaintiff’s continued treatment for his hernia with an
accepted medical practice demonstrates that Defendant Hodge did not act recklessly or in
defiance of Plaintiff’s health. Therefore, the Court concludes that Plaintiff fails to sufficiently
allege the subjective prong of deliberate indifference to demonstrate that Defendant
Hodge’s conduct rises to the level of a constitutional violation based on deliberate
indifference under the Eighth Amendment.
2.

Clearly Established Right

As to the second prong of qualified immunity, if no “constitutional right would have
been violated were the allegations established, there is no necessity for further inquiries
concerning qualified immunity.” Saucier, 533 U.S. at 201. Given that Plaintiff has failed
to meet the requirements of his Eighth Amendment claim against Defendant Hodge in his
individual capacity, the Court need not consider whether Plaintiff has alleged a violation of
a clearly established right. Therefore, the Court finds that Plaintiff fails to allege a plausible
basis to deny Defendant Hodge qualified immunity.
Finding that no constitutional violation has sufficiently been alleged, the Court
concludes that Defendant Hodge is entitled to qualified immunity on Plaintiff’s Eighth
Amendment claim. See Escobar v. Reid, 668 F. Supp. 2d 1260, 1293 (D. Colo. 2009). The
Court respectfully recommends that Plaintiff’s Eighth Amendment claim against Defendant
Hodge in his individual capacity be dismissed without prejudice. See Reynoldson v.
Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding that prejudice should not attach to

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a dismissal when plaintiff has made allegations “which, upon further investigation and
development, could raise substantial issues”).
B.

Eighth Amendment Claim Against CDOC Defendants in their Official Capacity
Defendants next argue that Plaintiff’s official capacity claims for injunctive relief

against the CDOC Defendants are moot, thus the Court examines if there is still a live case
or controversy pursuant to Fed. R. Civ. P. 12(b)(1). See Motion [#30] at 10-11. Plaintiff is
undisputedly no longer housed at CSP. See Notice of Change of Address [#8]. In his
Response, Plaintiff does not concede that the relief he requests is moot. [#32] at 11. He
argues that if “courts were to allow [the dismissal of claims on grounds of mootness], every
state prison system in America would immediately begin transferring any inmate who[ ] has
filed a [42 U.S.C. § 1983 claim].” Id. By seeking dismissal on the basis of mootness,
Defendants request a ruling on whether the Court has subject matter jurisdiction over this
claim. See Motion [#30] at 4. The Court addresses this argument next.
Mootness is an issue of subject matter jurisdiction, which can be raised at any stage
of the proceedings.9 Kennedy v. Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001). This
Court has no jurisdiction to consider moot cases, that is, cases in which “the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (citation
omitted). “It is a basic principle of Article III that a justiciable case or controversy must
remain extant at all stages of review, not merely at the time the complaint is filed.” Deberry

9

The Court may also consider the question of subject matter jurisdiction sua sponte at any
time. McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988); Smith v. Krieger,
643 F. Supp. 2d 1274, 1293 n.6 (D. Colo. 2009).

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v. Davis, 460 F. App’x 796, 799 (10th Cir. 2012) (internal quotation marks and citation
omitted). A claim may become moot at any point in the controversy and deprive the Court
of authority to decide questions which had previously been at issue. Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477-78 (1990). “[I]t is therefore not enough that the dispute was alive
when the suit was filed; the parties must continue to have a personal stake in the outcome.”
McLendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).
Although it is unclear what sort of injunctive relief Plaintiff seeks, the Court liberally
construes Plaintiff’s requested injunction to seek an order granting him the surgery he
desires. See Am. Compl. [#18] at 3, 8 (stating that Plaintiff seeks “injunctive relief”).
Plaintiff’s transfer from CSP to AVCF means the relief he requests is moot because he is
no longer under the care of the defendants named in his Amended Complaint [#18]. See
McLendon, 100 F.3d at 867; Geraghty, 445 U.S. at 396 (stating that application of the
mootness doctrine requires examination of whether “the parties lack a legally cognizable
interest in the outcome”). To illustrate, the Court briefly discusses application of the
mootness doctrine to the relief Plaintiff seeks.
“Where a plaintiff seeks an injunction, his susceptibility to continuing injury is of
particular importance -- ‘[p]ast exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.’” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Plaintiff has not alleged facts illustrating
that he is being injured in an ongoing and continuous manner based on actions by

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Defendant Hodge or Defendant Owens.10 See generally Am. Compl. [#18]. Plaintiff
developed his hernia while incarcerated at CSP. Id. at 3. Since being transferred to AVCF,
the Court is not aware of any allegations that Defendants Hodge or Owens are continuing
to (1) provide him medical care, (2) are responsible for his incarceration, or (3) work at the
same correctional facility where Plaintiff is incarcerated. He has simply not alleged the “real
and immediate” injury by these Defendants necessary for entry of injunctive relief. See
Rizzo v. Goode, 423 U.S. 362, 372 (1976) (stating that claim for injunctive relief was moot
where allegations of “real and immediate” injury were attenuated).
Having found that Plaintiff’s request for injunctive relief is moot, the Court next
examines if any exceptions to the mootness doctrine apply.

Construing Plaintiff’s

Response liberally, the Court interprets Plaintiff’s argument to be that his claim is not moot
because it qualifies for the mootness exception regarding a wrong capable of repetition yet
evading review. See [#32] at 13. Plaintiff bears the burden of establishing the applicability
of the exception that the wrong alleged is capable of repetition yet evading review. Jordan,
654 F.3d at 1012. Here, the Court finds that Plaintiff has not met his burden. The Court
finds that, accepting Plaintiff’s allegations as true, Plaintiff does not present a reasonable
likelihood that he will be reassigned or transferred back to CSP. Response [#32] at 10.
The inquiry regarding the “capable of repetition yet evading review” exception to the
mootness doctrine turns on whether Plaintiff has established a demonstrated probability
that he will be reassigned to CSP in the future, and thereby will again be subject to the

10

Although Plaintiff alleges various ongoing pain related to his hernia, all prison staff named
as Defendants are employed at CSP. No allegations have been made regarding any request for
medical care at his present correctional facility, AVCF. See generally Am. Compl. [#18]; Response
[#32].

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medical decisions and treatment at issue in this case. See City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983) (“The equitable remedy is unavailable absent a showing of
irreparable injury, a requirement that cannot be met where there is no showing of any real
or immediate threat that the plaintiff will be wronged again . . ..”); Underwood v. United
States, 255 F. App’x 337, 338 (10th Cir. 2007) (“[P]laintiff must do more than speculate
about future possibilities. [Plaintiff] must show a ‘reasonable expectation’ or a
‘demonstrated probability’ that this same controversy . . . will recur.”) (citation and internal
quotation marks omitted)). Here, Plaintiff contends that transfers will become a frequent
tactic of prisons in the future to avoid medical treatment sought by prisoners. Response
[#32] at 11; Surreply [#34] at 12. This is an attenuated argument for a wrong that will
happen again in the future, yet evade review. However, Plaintiff does not allege any facts
to support the contention that he may be reassigned to CSP at any time before his term of
incarceration is completed. Response [#32] at 11; Surreply [#34] at 12.
The Court concludes that Plaintiff has not demonstrated with any specificity or
immediacy that he will be reassigned to CSP. Similar to the Tenth Circuit’s determination
in Jordan v. Sosa, Plaintiff “offers [the Court] nothing to validate the reasonableness of his
expectancy of changed conditions of penal confinement.” 654 F.3d at 1036. Making a
decision as to the medical care and policies provided at CSP, especially regarding a
plaintiff who is no longer incarcerated at CSP and who has not established a demonstrable
probability that he will be reassigned to CSP, would constitute rendering an impermissible
advisory opinion. See Deberry, 460 F. App’x at 799. Therefore, the Court finds that the
exception to the mootness doctrine for situations that are capable of repetition yet evade
review is inapplicable to this case.
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In light of the above-stated legal precedent, the only potential exception to the
mootness doctrine asserted by Plaintiff does not apply here, and the Court therefore lacks
subject matter jurisdiction over Plaintiff’s claim for injunctive relief. Thus, if the Court issued
an order granting the relief requested, the order would be an impermissible advisory
opinion regarding conditions of confinement at CSP and would have no “effect in the real
world” for Plaintiff. See Jordan, 654 F.3d at 1030. “[A]s a federal court, [the Court is] not
in the business of rendering such feckless judgments.” Deberry, 460 F. App’x at 799.
In sum, the Court respectfully recommends that Plaintiff’s Eighth Amendment claim
against Defendants Hodge and Owens in their official capacity be dismissed without
prejudice as moot for lack of subject matter jurisdiction. See Lewis v. Burger King, 398
F. App’x 323, 325 n.3 (10th Cir. 2010) (holding dismissal due to mootness must be without
prejudice); Brereton, 434 F.3d at 1216-17.
IV. Conclusion
For the foregoing reasons, the Court respectfully RECOMMENDS that the Motion
[#30] be GRANTED, and that all claims against Defendants Hodge and Owens be
DISMISSED without prejudice.
IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 72, the parties shall have
fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

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questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 14, 2019

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