Washington v. Head of Mental Health et al
ORDER by Magistrate Judge Michael E. Hegarty on 15 October 2020. The Court GRANTS Defendant's Motion 29 as follows: the ADA claim, the Section 1983 official capacity claim, and the request for good-time credits are dismissed with prejudice, and the remaining individual capacity claim for deliberate indifference is dismissed without prejudice. Additionally, the Court grants Plaintiff leave to file a second amended complaint on or before November 10, 2020.(cmadr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-03129-MEH
DARNELL EMERSON WASHINGTON,
JOANN O’NEAL, HEAD OF MENTAL HEALTH,
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff Darnell Emerson Washington (“Plaintiff”), a pro se prisoner, alleges violations of
his constitutional and statutory rights by Defendant Joann O’Neal (“Defendant”), head of mental
health at Fremont Correctional Facility. ECF 21. He brings claims pursuant to 42 U.S.C. § 1983
against Defendant in her individual and official capacities for violations of the Eighth Amendment
and the Americans with Disabilities Act (“ADA”) in his Amended Prisoner Complaint (“Amended
Complaint”). Id. Defendant has filed the present motion to dismiss (“Motion”) pursuant to Fed.
R. Civ. P. 12(b)(6). ECF 29. The Motion is fully briefed. As set forth below, this Court grants
Defendant’s Motion, but also grants Plaintiff leave to amend his complaint.
The following are factual allegations (as opposed to legal conclusions, bare assertions, or
merely conclusory allegations) made by Plaintiff in his Amended Complaint, which are taken as
true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678
Plaintiff alleges that he suffers from mental health issues, including depression, bipolar
disorder, and schizophrenia. ECF 21 at 4. Plaintiff sees a psychiatrist every three to four months
for medication but states that he otherwise is not being treated. Id. Plaintiff is designated as a “P4-N” on a scale of mental health severity (with “P-1-N” being least severe and “P-5-N” being most
severe). Id. Defendant knows Plaintiff’s condition, as she has received multiple emails requesting
help for Plaintiff. Id. at 5. Her response “is always” that Plaintiff will be seen by someone. Id. at
6. On one occasion, Defendant saw Plaintiff in her office and told him that he would be assigned
a therapist once a month. Id. at 7–8. She also told Plaintiff that she understood the difficulties for
“for someone who comes from a mental health facility to adapt to a bigger facility.” Id. at 8. In
another meeting with Plaintiff, Defendant expressed that she would assign him a therapist and
provide help “getting into programs.” Id. at 8–9. Despite these comments, “[Defendant] has not
allowed [Plaintiff] to be seen by any of her mental health staff.” Id. at 9. Apparently, someone
from “another facility” saw Plaintiff and requested that Defendant “have her providers see” him,
but she “ignored [the request] 5 or 6 times.” Id. Requests on Plaintiff’s behalf have also been
made by his psychiatrist and nurses. Id. at 9–10. Defendant has not acted on any of them. Id. at
10. To date, Plaintiff has “not received mental health care.” Id. at 8. Plaintiff requests one million
dollars in damages and good-time credits. Id. at 12.
Plaintiff filed suit on November 1, 2019 against “Head of Mental Health, Jane Doe, John
Doe.” ECF 1. He asserted claims for alleged violations of the Eighth Amendment and the ADA.
Id. During initial review, Magistrate Judge Gordon P. Gallagher ordered Plaintiff to file an
amended complaint within thirty days to cure deficiencies regarding the ADA claim and Plaintiff’s
request for good-time credits. ECF 6 at 3. If Plaintiff only intended to pursue the Eighth
Amendment claim, he did not need to file an amended complaint. Id. Plaintiff filed a “motion to
answer to court order” (“ECF 7”) stating that he wished to continue the case without the ADA
claim but wanted to add the good-time credit request for relief. ECF 7 at 1. Accordingly, after
Plaintiff did not file an amended complaint, Magistrate Judge Gallagher issued a recommendation
to dismiss Plaintiff’s Eighth Amendment claim against Defendant in her official capacity and
permit the individual capacity claim to be drawn. ECF 10 at 5. Magistrate Judge Gallagher also
recommended granting ECF 7 “to the extent Plaintiff clarifie[d] he is not asserting an ADA claim”
and denying it “to the extent Plaintiff [sought] to add an Eighth Amendment claim regarding good
time and earned time credits.” Id. at 4. Senior District Judge Lewis T. Babcock accepted and
adopted the recommendation, and the case was drawn to the undersigned. ECF 11. The parties
consented to magistrate judge jurisdiction on August 25, 2020. ECF 17, 30.
At a scheduling conference on March 17, 2020, Plaintiff informed the Court that he
intended to file an amended complaint to reflect the properly named defendant. See ECF 19. On
April 28, 2020, Plaintiff filed the operative Amended Complaint, expressly naming Defendant.
Plaintiff also included a claim under the ADA and indicated that he was suing Defendant in her
individual and official capacities. ECF 21.
Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency
of the plaintiff’s complaint. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 2008). “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.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context
of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires
a two-prong analysis. First, a court must identify “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 680. Second, the Court must consider 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.
Plausibility refers “‘to the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will
vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011).
Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case
in a complaint, the elements of each alleged cause of action may help to determine whether the
plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1192. However, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions”
or merely “a formulaic recitation of the elements of a cause of action,” so that “courts ‘are not
bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S.
at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” the complaint has made an allegation, “but it has not shown that the pleader is entitled
to relief.” Id. (quotation marks and citation omitted).
Treatment of a Pro Se Plaintiff’s Complaint
A pro se plaintiff's “pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)). “Th[e] court, however, will not supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561
F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v.
Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this
interpretation is qualified in that it is not “the proper function of the district court to assume the
role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
Plaintiff’s Amended Complaint asserts claims against Defendant for violation of the Eighth
Amendment (under 28 U.S.C. § 1983) and the ADA, 42 U.S.C. § 1210, et seq. Defendant raises
two arguments for dismissal. First, Plaintiff attempts to bring claims that have already been
dismissed. Second, she is entitled to qualified immunity, because Plaintiff does not plausibly state
a constitutional violation. For the reasons set forth below, the Court grants Defendant’s Motion.
However, the Court also grants Plaintiff leave to amend, because it cannot find that amendment
would be futile.
Plaintiff attempts to revive his ADA claim, his Eighth Amendment official capacity claim,
and his request for good-time credits in his Amended Complaint. Judge Babcock already
dismissed those claims. Though Judge Babcock’s order does not explicitly state whether the
dismissal is with or without prejudice, there is a presumption that dismissals for failure to state a
claim are with prejudice. See Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1299 (10th
Cir. 2014) (“Dismissals for failure to state a claim are presumptively with prejudice because they
fully dispose of the case.”); Lujan v. Dreis, 414 F. App’x 140, 143 (10th Cir. 2011) (unpublished)
(“We presume the dismissal was with prejudice since a dismissal for failure to state a claim . . . [is
a] decision on the merits.”). Finding no basis to stray from the presumption, Plaintiff cannot
reassert his claims against Defendant. See Charles v. Hackford, No. 18-4024, 2018 WL 4006938,
at *1 (10th Cir. April 5, 2018) (“[T]he dismissal with prejudice means the plaintiff cannot return
to federal court with the same claims.”). Therefore, the Court grants the Motion with respect to
the ADA claim, the official capacity claim, and the request for good-time credits.
With respect to the individual capacity claim under Section 1983, Defendant asserts the
defense of qualified immunity. Qualified immunity protects from litigation a public official whose
possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official’s
actions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial
or face the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006)
(internal quotations and citations omitted). The privilege is an immunity from suit rather than a
mere defense to liability. Id. The defense of qualified immunity requires that “(1) a reasonable
jury could find facts supporting a violation of a constitutional right, which (2) was clearly
established at the time of the defendant’s conduct.” Estate of Smart by Smart v. City of Wichita,
951 F.3d 1161, 1169 (10th Cir. 2020). The Supreme Court in Pearson v. Callahan emphasized
that courts have the discretion to decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.” 555
U.S. 223, 236 (2009); see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th
Here, the Court will begin by analyzing whether Plaintiff states a plausible
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) (internal
citation omitted). A claim for deliberate indifference must satisfy an objective and subjective
component. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). The objective component
is met if the plaintiff can show that “the harm suffered is sufficiently serious to implicate the Cruel
and Unusual Punishment Clause.” Id. (citation and quotation marks omitted). “To prevail on the
subjective component, the prisoner must show that the defendants knew he faced a substantial risk
of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Id. (citation
and quotation marks omitted). “‘[A]n inadvertent failure to provide adequate medical care’ does
not give rise to an Eighth Amendment violation.” Id. (quoting Estelle, 429 U.S. at 105–06).
Defendant argues that Plaintiff’s allegations fail to establish either the objective or
subjective component. Mot. at 7–11. Plaintiff responds that the subjective component is met,
because Defendant knew of Plaintiff’s condition “and failed to correct her actions.” Resp. at 4.
Plaintiff asserts the objective component is satisfied, because Defendant knew that not treating
him would lead to him “trying to kill [himself].” ECF 21 at 5. Because Plaintiff fails the objective
component, the Motion must be granted.
“[T]he question raised by the objective prong of the deliberate indifference test is whether
the alleged harm . . . is sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 753 (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 (quoting Sealock v. Colorado, 87 F.3d 1205, 1209
(10th Cir. 2000)). For a case involving allegations of delay in treatment, the plaintiff must show
“‘that the delay resulted in substantial harm,’ a requirement that ‘may be satisfied by’ a showing
of ‘lifelong handicap, permanent loss, or considerable pain.’” Vasquez v. Davis, 882 F.3d 1270,
1275 (10th Cir. 2018) (quoting Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014)).
“Alternatively, a condition must be sufficiently serious so as [to] constitute risk of serious harm.”
Silverstein v. Fed. Bureau of Prisons, 559 F. App’x 739, 753 (10th Cir. 2014) (quoting Shannon
v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001)).
Plaintiff contends that he needs his daily medication, or he will “end up harming” himself.
ECF 21 at 7. His allegations indicate that he has seen physicians and received necessary
medication. Id. at 9–10. Plaintiff does not allege denial or delay in receiving this medication;
rather, Plaintiff alleges delay in Defendant providing him with a therapist. The alleged delay in
seeing a therapist is putting Plaintiff at “substan[t]ial risk of serious harm.” ECF 21 at 6. Plaintiff
identifies his history of swallowing razor blades “and other attempts of killing [himself]” as
evidence of this risk. Id. at 6.
Defendant argues that these allegations fail to demonstrate the requisite substantial harm
for the objective component. Mot. at 9. The Court agrees. In alleging delay in treatment, Plaintiff
needs to show actual, “substantial harm.” Vasquez, 882 F.3d at 1275. Plaintiff does not allege
any specific instance where he has tried to harm himself, or even contemplated doing so, as a result
of the lack of seeing a therapist every month. He alleges possible harm when he does not have his
medication but does not bring a claim regarding that aspect of his treatment. Similarly, Plaintiff’s
allegations that he was not placed into certain programs fail to establish a substantial harm. ECF
21 at 8–9. As currently pleaded, the Amended Complaint does not allege a “lifelong handicap,
permanent loss, or considerable pain.” Vasquez, 882 F.3d at 1275. Therefore, the Court finds no
adequately pleaded, sufficiently serious harm.
Alternatively, to satisfy the objective component, “a condition must be sufficiently serious
so as [to] constitute a substantial risk of serious harm.” Silverstein, 559 F. App’x at 753. Risk of
serious self-harm can satisfy this component. See Oakleaf v. Martinez, 297 F. Supp. 3d 1221, 1230
(D.N.M. 2018) (evidence of considering self-harm demonstrates a sufficiently serious medical
need); Palakovic v. Wetzel, 854 F.3d 209, 230 (3d Cir. 2017) (sufficiently serious injury “[w]hen
mentally ill, depressed person has attempted to kill himself multiple times, has engaged in selfharm, declares he has been thinking about killing and harming himself, and has made an actual
plan of how he would carry out his own suicide”); Vann v. Vandenbrook, 596 F. Supp. 2d 1238,
1242 (W.D. Wis. 2009) (“suicide attempts pose a serious risk of harm to a prisoner’s health and
The Tenth Circuit has held that “in the context of mental health, . . . the Eighth
Amendment may be implicated by the infliction of psychological harm but that ‘[t]he actual extent
of any . . . psychological injury is pertinent in proving a substantial risk of serious harm.’” Id. at
754 (quoting Benefield v. McDowall, 241 F.3d 1267, 1272 (10th Cir. 2001)).
Plaintiff alleges that by “not getting any mental health” treatment, he is being put “at a
substantial risk of serious harm.” ECF 21 at 6. However, that allegation is belied by Plaintiff’s
other allegations. For example, Plaintiff claims he is not receiving any mental health treatment
but states that he sees a psychiatrist every three to four months for his medications. Id. at 4.
Nonetheless, Plaintiff does not allege adequate facts for the Court to determine the “actual extent”
of his claimed psychological injury. See Benefield, 241 F.3d at 1272 (“The actual extent of any
physical injury, threats or psychological injury is pertinent in proving a substantial risk of serious
harm.”). Put differently, Plaintiff does not specifically allege how the denial of seeing a therapist
every month contributes to his substantial risk of serious self-harm. In the Amended Complaint,
Plaintiff describes his history of self-harm, including allegedly swallowing razors. ECF 21 at 6.
Without facts connecting the denial of a therapist to any such actions by Plaintiff, his allegation of
substantial risk of harm is conclusory. Accordingly, the Court finds no well-pleaded, sufficiently
serious risk of harm. Absent that, Plaintiff has not plausibly pleaded the objective component, and
qualified immunity is appropriate. 1
Leave to Amend
Having found Plaintiff insufficiently pleaded his claim against Defendant, the Court now
turns to the issue of whether dismissal of the claim should be with or without prejudice. Generally,
in a case involving a pro se litigant, the Tenth Circuit has held that if “it is at all possible that the
party against whom the dismissal is directed can correct the defect in the pleading or state a claim
for relief, the court should dismiss with leave to amend.” Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). “Particularly where deficiencies in a complaint are attributable to oversights
likely the result of an untutored pro se litigant’s ignorance of special pleading requirements,
As such, the Court will not analyze the subjective component.
dismissal of the complaint without prejudice is preferable.” Id. However, “[c]omplaints drafted
by pro se litigants . . . are not insulated from the rule that dismissal with prejudice is proper for
failure to state a claim when ‘it is obvious that the plaintiff cannot prevail on the facts he has
alleged and it would be futile to give him the opportunity to amend.’” Fleming, 573 F. App’x at
769 (quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999)). In this case, the
Court cannot say that amendment would be utterly futile. See Oxendine v. Kaplan, 241 F.3d 1272,
1275 (10th Cir.) (“We have stated that ‘[d]ismissal of a pro se complaint for failure to state a claim
is proper only where . . . it would be futile to give him an opportunity to amend.’” (quoting Perkins
v. Kans. Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999)). Thus, Plaintiff’s claim for
deliberate indifference is dismissed without prejudice, and Plaintiff is granted leave to file a second
The Court GRANTS Defendant’s Motion [filed August 25, 2020; ECF 29] as follows: the
ADA claim, the Section 1983 official capacity claim, and the request for good-time credits are
dismissed with prejudice, and the remaining individual capacity claim for deliberate indifference
is dismissed without prejudice. Additionally, the Court grants Plaintiff leave to file a second
amended complaint on or before November 10, 2020.
Respectfully submitted this 15th day of October, 2020, at Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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