Johnson v. Ward et al

Filing 165

AMENDED ORDER by Chief Judge Philip A. Brimmer on 1/7/2021, re: 134 the Motion Plaintiffs [sic] Response to Motion [Docket No.142] is OVERRULED. ORDERED that the CDOC Defendants Motion to Dismiss [Docket No. 64] is GRANTED. ORDERED that the plaintiffs official-capacity claims against May, Allen, Wilson, Castillo, Hodge, and Boyd are DISMISSED without prejudice. ORDERED that the plaintiffs individual-capacity claims against May, Allen,Wilson, Castillo, Hodge, and Boyd are DISMISSED w ith prejudice. It is furtherORDERED that plaintiffs Motion for Preliminary Injunction [Docket No. 113] isDENIED. It is further ORDERED that, on or before January 25, 2020, plaintiff shall show cause why defendant Ward should not be dismissed without prejudice for failure to serve pursuant to Rule 4 of the Federal Rules of Civil Procedure. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-00447-PAB-MEH
JABARI J. JOHNSON,
Plaintiff,
v.
GARY WARD,
RYDER MAY,
MICHAEL ALLEN,
NICOLE WILSON,
MEGGAN CASTILLO,
RICHARD HODGE, and
KATHLEEN BOYD,
Defendants.

AMENDED ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 134]. The Recommendation addresses plaintiff Jabari J.
Johnson’s (“Johnson”) complaint, Docket No. 1, and motion for preliminary injunction
seeking injunctive relief concerning the allegations in the complaint, Docket No. 113.
The Recommendation also addresses the motion to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure brought by defendants Ryder May
(“May”), Michael Allen (“Allen”), Nicole Wilson (“Wilson”), Meggan Castillo (“Castillo”),
Richard Hodge (“Hodge”), and Kathleen Boyd (“Boyd”) (together the “Colorado
Department of Corrections (“CDOC”) defendants”).1 Docket No. 64. Because Mr.
1

served.

Gary Ward (“Ward”), the only defendant not moving to dismiss, has not been

Johnson is pro se, the Court construes his filings liberally without serving as his
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND2
Mr. Johnson is an inmate who is incarcerated at the Colorado State Penitentiary
(“CSP”) in Cañon City, Colorado. Docket No. 1 at 3. Mr. Johnson alleges that from
October 2017 to November 2019 Ward, May, Wilson, Allen, Hodge, and Boyd deprived
Mr. Johnson “of an orthopedic visit for surgery and medical boot” for Mr. Johnson’s right
foot. Id. at 6. Among other things, plaintiff alleges that Hodge scheduled physical
therapy appointments for Mr. Johnson, but Castillo canceled them. Id. Mr. Johnson
also alleges that, from April 6, 2019 to May 11, 2019, Boyd “deprived [Mr. Johnson] of
chronic pain medication [and] refus[ed] to see” Mr. Johnson. Id. Boyd later gave Mr.
Johnson medication to help with the pain and rashes on Mr. Johnson’s back, arm , and
shoulders, but the medication did not help. Id. And while Mr. Johnson had an
appointment for “pain management” set for June 2019, Mr. Johnson was transferred to
Sterling Correctional Facility (“Sterling”) before he could be seen. Id. Mr. Johnson
further alleges that Allen discontinued his mediation from June 2019 to November
2019, which Mr. Johnson complained about in August 2019. Id. Also in August 2019,
Mr. Johnson suffered a heart attack and, once he arrived back at the facility,
“continuously requested to see [a doctor] as [Hodge] deprived care.” Id. at 7. To date,

2

The Court assumes that the allegations in plaintiff’s complaint are true in
considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.
2011).
2

Mr. Johnson alleges that he has not been prescribed medication for his injuries, which
Mr. Johnson attributes to Boyd and Hodge not liking “‘N[******]’ who sue.” Id.
Mr. Johnson asserts one claim against defendants under 28 U.S.C. § 1983 for
violation of his Eighth Amendment rights. Docket No. 1 at 6. The CDOC defendants
raise three grounds for dismissal. Docket No. 64 at 2. First, the CDOC defendants
argue that, under the Eleventh Amendment, this Court does not have subject matter
jurisdiction for Mr. Johnson’s claim against the CDOC defendants sued in their official
capacities and seeking monetary relief, and therefore Mr. Johnson’s complaint should
be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Id. Second,
the CDOC defendants argue that Mr. Johnson has failed to state claims for relief
against May and Allen because he has not alleged their personal participation in any
conduct relating to his claims. Id. Third, the CDOC defendants argue that they are
entitled to qualified immunity because Mr. Johnson does not plausibly state a
constitutional violation as required under section 1983, and therefore Mr. Johnson’s
complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Id. The magistrate judge appears to have reviewed the latter two grounds
for dismissal together, and so will the Court in its review.
Magistrate Judge Hegarty issued a recommendation on October 1, 2020 as to
Mr. Johnson’s complaint and motion for preliminary injunction, as well as the CDOC
defendants’ motion to dismiss. Docket No. 134. Mr. Johnson filed objections on
October 19, 2020. Docket No. 142. The CDOC defendants filed a response to Mr.
Johnson’s objections on November 2, 2020. Docket No. 145. Mr. Johnson replied on
November 18, 2020. Docket No. 149.
3

II. LEGAL STANDARD
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Know n as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specif ic objection “enables the
district judge to focus attention on those issues – factual and legal – that are at the
heart of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(“It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”). The Court therefore reviews the non-objected
to portions of the recommendation to confirm that there is “no clear error on the face of
the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. This standard of review
is something less than a “clearly erroneous or contrary to law” standard of review, Fed.
R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).
Because plaintiff is proceeding pro se, the Court will construe his objections and
pleadings liberally without serving as his advocate. See Hall, 935 F.2d at 1110.
A. Lack of Subject Matter Jurisdiction
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if
the Court lacks subject matter jurisdiction over claims for relief asserted in the

4

complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction, the court
“must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). To the extent a defendant attacks the factual basis for
subject matter jurisdiction, the court “may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.” SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.
1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately,
and in either case, plaintiff has “[t]he burden of establishing subject matter jurisdiction”
because she is “the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R.
Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
B. Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

5

(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
“supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584
F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (citation
omitted)); see also Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th
Cir. 2002) (stating that a court “need not accept [] conclusory allegations”). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown – that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and
alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements

6

necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
A. Lack of Subject Matter Jurisdiction
Magistrate Judge Hegarty recommends that Mr. Johnson’s claim for damages
against the CDOC defendants in their official capacities be dismissed. Docket No. 134
at 7. Specifically, the magistrate judge concluded that Mr. Johnson seeks $4 million in
monetary compensation from each of the CDOC defendants – $1.5 million in
compensatory damages and $2.5 million in punitive damages. Id. (citing Docket No. 1
at 8, 25). While Mr. Johnson’s complaint is unclear, the magistrate judge also
concluded that Mr. Johnson is suing the CDOC defendants in both their individual and
official capacities.3 Id. (citing Docket No. 1 at 3–4). However, the magistrate judge
determined, because the CDOC defendants are state officials, the Court must treat a
suit against them as a suit against the state itself. Id. Because the Eleventh
Amendment bars suits against the state for damages, the magistrate judge concluded
that Eleventh Amendment immunity “constitutes a bar to the exercise of federal subject
matter jurisdiction.” Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000).
In response to Magistrate Judge Hegarty’s recommendation, Mr. Johnson first
argues that his claims are not conclusory and that he has proven his claims in previous
filings. Docket No. 142 at 1. Second, Mr. Johnson argues that a district court reviewing
a motion to dismiss for lack of subject matter jurisdiction may review affidavits, other

3

Mr. Johnson does not dispute this characterization in his objections.
7

documents, and the fruits of a limited evidentiary hearing to resolve jurisdiction disputes
under Rule 12(b)(1). Id. at 2. Therefore, Mr. Johnson states, he has “proven that he
has established jurisdiction under Rule 12(b)(1)” because he provided exhibits and
witness declarations. Id. Third, Mr. Johnson argues that he
did not sue the [d]efendants in their official capacity in which Fed. R. Civ. P. does
not bar lawsuits against (A) state officials in their individual capacity for damages
or (B) against state officials in their official capacity for injunctive relief, w[h]ere
the plaintiff did request damages in the defendant[’]s individual capacity,
therefore plaintiff[’]s claim is not barred, also plaintiff has produced evidence
proving plausible as (1) a reasonable jury could find facts supporting a violation
of constitutional rights, which was (2) clearly established at the defendant’s
conduct.
Docket No. 142 at 3.
Mr. Johnson’s first and second objection – that his allegations are not conclusory
and that his exhibits and witness declarations establish subject matter jurisdiction – do
not contradict Magistrate Judge Hegarty’s conclusion that subject matter jurisdiction
must be determined “from the allegations of fact in the complaint, without regard to
mere [conclusory] allegations of jurisdiction,” Docket No. 134 at 3 (quoting Groundhog
v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)), or facts submitted outside the complaint.
Id. at 11. See Erikson v. BP Expl. & Prod. Inc., 567 F. App’x 637, 639 (10th Cir. 2014)
(holding that the district court did not err in “failing to consider the materials” that a pro
se litigant “attached to his response in opposition” to a m otion to dismiss).
While Mr. Johnson is correct that “a facial attack on the complaint[’]s allegations
subject matter jurisdiction questions the sufficiency of the complaint” and that “in
reviewing a facial attack on the complaint[, the court] must accept the complaint as
true,” Docket No. 142 at 2, a plaintiff’s complaint must still allege sufficient facts that, if
8

taken as true, would establish subject matter jurisdiction. This is because the
“sufficiency of a complaint must rest on its contents alone.” Gee v. Pacheco, 627 F.3d
1178, 1186 (10th Cir. 2010). Mr. Johnson’s complaint, however, clearly demands
damages from the CDOC defendants, Docket No. 1 at 25, and, while his complaint
states that he is suing only Ward, May, and Allen in their official and individual
capacities, id. at 3–4, he does not dispute the magistrate judge’s conclusion that he is
suing all of the CDOC defendants in both capacities. Docket No. 134 at 7.
Mr. Johnson’s third objection – that a plaintiff, in one suit, may seek an injunction
for the official-capacity claims and damages for the individual-capacity claims – also
does not contradict the magistrate judge’s conclusion that the court does not have
subject matter jurisdiction to consider Mr. Johnson’s official-capacity claims for
damages. “[W]hen an action is in essence one for the recovery of money from the
state, the state is the real, substantial party in interest and is entitled to invoke its
sovereign immunity from suit even though individual officials are nominal defendants.”
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 277 (1977).
The Court has reviewed the non-objected portions of the recommendation to
satisfy itself that there is “no clear error on the face of the record.” Fed. R. Civ. P.
72(b), Advisory Committee Notes. Based on this review, the Court has concluded that
this portion of the recommendation is a correct application of the facts and the law.
Therefore, because Mr. Johnson has not objected to the magistrate judge’s conclusion
that the Court does not have subject matter jurisdiction to consider official-capacity
damages claims, the Court accepts the magistrate judge’s recommendation that Mr.
Johnson’s official-capacity damages claims against the CDOC defendants be
9

dismissed.
B. Failure to State a Claim
Magistrate Judge Hegarty further recommends granting the CDOC defendants’
motion to dismiss because Mr. Johnson has not alleged that the CDOC defendants
violated his constitutional rights. The magistrate judge concluded that the plaintiff failed
to state a claim under section 1983, and thus the CDOC def endants are entitled to
qualified immunity. Docket No. 64 at 2; Docket No. 134 at 7, 15. Qualif ied immunity
“shields government officials performing discretionary functions from individual liability
under [section 1983] unless their conduct violates ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Baptiste v. J.C.
Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “Once a defendant asserts qualified immunity as a defense, the
plaintiff must carry the burden of showing qualified immunity is not proper under the
circumstances. To do this, the plaintiff must show that (1) the defendant’s conduct
violated a constitutional right and (2) the law governing the conduct was clearly
established at the time of the alleged violation.” DeSpain v. Uphoff, 264 F.3d 965, 971
(10th Cir. 2001) (citing Baptiste, 147 F.3d at 1255). 4
Mr. Johnson claims that he has not been provided adequate health care,
constituting cruel and unusual punishment in violation of the Eighth Amendment.

4

The Court presumes that the magistrate judge did not consider the second
element of the qualified immunity analysis because he had already determined that Mr.
Johnson did not plead sufficient facts to establish a constitutional violation. Mr.
Johnson did not object to this, and the Court f inds no clear error. Fed. R. Civ. P. 72(b),
Advisory Committee Notes.
10

Docket No. 1 at 6. The magistrate judge analyzed this claim under the “deliberate
indifference” framework. Docket No. 134 at 8. Deliberate 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)). To establish deliberate
indifference, a plaintiff must show that “the harm suffered is sufficiently serious to
implicate the Cruel and Unusual Punishment Clause.” Callahan v. Poppell, 471 F.3d
1155, 1159 (10th Cir. 2006). This is the objective component. A plaintiff must also
show that the defendants “knew [that the plaintiff] 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). T his is the subjective component.
1. Objective Component
Mr. Johnson first alleges that he was denied a medical boot from October 2017
to November 2019. Docket No. 1 at 1. The CDOC defendants argue that this claim is
time-barred. Docket No. 64 at 9. Because section 1983 does not prov ide a limitations
period, the magistrate judge looked to Colorado law, which provides for a two-year
limitations period for claims arising out of federal laws that are silent as to limitations
periods. Docket No. 134 at 9 (citing Colo. Rev. Stat. § 13-80-120(g)). Since Mr.
Johnson knew or should have known of the alleged constitutional violation in October
2017, but did not file his complaint until February 18, 2020, the magistrate judge
concluded that the claim for a denial of a medical boot is time-barred because it arose
before February 18, 2018. Docket No. 134 at 10.

11

In his objection, Mr. Johnson cites Tiberi v. Cigna Corp., 83 F.3d 1423, 1430–31
(10th Cir. 1996), for the proposition that the limitations period runs from the date of the
last injury or when the wrong is over. Docket No. 142 at 3. W hile Mr. Johnson is
correct that the court in Tiberi applied the “continuing wrong doctrine,” Tiberi is not a
section 1983 case and, as such, is inapposite to the Court’s analy sis. Rather, the
magistrate judge is correct that claims under section 1983 accrue when the “plaintiff
knows or should know that his or her constitutional rights have been violated.” Docket
No. 134 at 10 (quoting Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998)). Mr.
Johnson stated that this injury began in October 2017. Docket No. 1 at 6, ¶ 1.
Therefore, because his medical boot claim arose more than two years before he filed
his lawsuit, the claim is time-barred.
Magistrate Judge Hegarty also considered Mr. Johnson’s allegations that he
experienced a delay in orthopedic medical care after February 18, 2018. Docket No.
134 at 10. In particular, Mr. Johnson alleges that he had physical therapy appointments
that were canceled as recently as April 10, 2019 and that he was deprived of pain
medication until May 2019. Docket No. 1 at 6, ¶ 3. Mr. Johnson states, how ever, that
he received medication on May 11, 2019, but that the medication has not proven
effective. Id., ¶ 4. Since being transferred to Sterling, Mr. Johnson alleges that he has
been denied care and has not been “prescribed an order f or his injuries.” Id., 7, ¶ 7.
However, the magistrate judge concluded that Mr. Johnson did not provide specific
allegations that the delay resulted in substantial harm as required by Vasquez, 882 F.3d
at 1252 (substantial harm includes “lifelong handicap, permanent loss, or considerable

12

pain”). Mr. Johnson objects that he has suffered “considerable pain” as a result of
being denied medical care. Docket No. 142 at 4. He also argues that his injuries were
“clear” and that “mandated orders” are evidence that he needed physical therapy. Id. at
2. Mr. Johnson cites Green v. Branson, 108 F.3d 1296 (10th Cir. 1997), in support.
Green is distinguishable since the plaintiff there was “screaming in agony” and the
defendant refused to treat the plaintiff despite “clear injuries, clear swelling, clear
bleeding, [and] clear indications of possible internal injuries.” Id. at 1303. Mr. Johnson
cites Sealock v. Colorado; however, in that case, the plaintiff’s injuries were “so obvious
that even a lay person would recognize the necessity for a doctor’s attention.” 218 F.3d
1205, 1209 (10th Cir. 2000). Mr. Johnson cites McCarthy v. Weinberg for the
proposition that denial of physical therapy is a substantial harm. However, McCarthy
concerned a plaintiff who was “debilitated” by multiple sclerosis and had lost his hearing
and eyesight. 753 F.2d 836, 839 (10th Cir. 1985). Mr. Johnson has not established
that his denial of care and injuries are the sort of “substantial harm” that the court found
in Vasquez, Green, and McCarthy, or obvious harm, as in Sealock. Therefore, the
Court agrees with the magistrate judge that Mr. Johnson’s complaint does not
adequately plead the objective prong.
Finally, Mr. Johnson alleges that Hodge deprived him of care following a heart
attack in August 2019. Docket No. 1 at 7, ¶ 6. The magistrate judge concluded that
Mr. Johnson’s allegation was conclusory because it failed to provide any details on how
Hodge denied care. Docket No. 134 at 12. Because Mr. Johnson did not alleg e an
“affirmative link” between Hodge and the constitutional violation, as required in Duffield

13

v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008), the m agistrate judge concluded that
he failed to state a claim. Furthermore, without allegations connecting the other CDOC
defendants to the alleged denial of care following Mr. Johnson’s heart attack, the
magistrate judge concluded that Mr. Johnson has failed to state a claim against them
because a plaintiff must allege “an affirmative link between each defendant and the
constitutional deprivation.” Docket No. 134 at 12 (quoting Duffield, 545 F.3d at 1238).
Mr. Johnson has not objected to this portion of the magistrate judge’s recommendation.
The Court has reviewed the non-objected portions of the recommendation to satisfy
itself that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b),
Advisory Committee Notes. Based on this review, the Court has concluded that this
portion of the recommendation is a correct application of the facts and the law.
2. Subjective Component
Magistrate Judge Hegarty concluded that, even if Mr. Johnson pled sufficient
facts to establish the objective component, he has failed to establish the subjective
component, i.e., that the defendants each had a sufficiently culpable state of mind to
violate the Eighth Amendment. Docket No. 134 at 12. Mr. Johnson has not show n that
the CDOC defendants were “both . . . aware of the facts from which the inference could
be drawn that a substantial risk of serious harm exists, and [that they] dr[e]w the
inference.” Id. at 13 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The
question is, “were the symptoms such that a prison employee knew the risk to the
prisoner and chose (recklessly) to disregard it?” Id. (quoting Mata v. Saiz, 427 F.3d
745, 755 (10th Cir. 2005)).

14

Mr. Johnson objects that the conscious disregard can be inferred from “Nurse
Jason’s” indication that care was denied because Mr. Johnson is a “N[*****] who sue.”
Docket No. 142 at 4. In addition, Mr. Johnson alleges that Boyd consciously
disregarded the risk to Mr. Johnson’s health when she did not timely reinstate Mr.
Johnson’s medication and then prescribed medication that did not work. Id. Finally, Mr.
Johnson argues that, while “[a]ctual knowledge must be shown under Farmer, the other
items need not.” Id. at 5.
The Court agrees with the magistrate judge’s analysis. Mr. Johnson’s complaint
does not establish the affirmative link that is required. First, “Nurse Jason” is not a
defendant in this case. Assuming that Mr. Johnson is reporting what Nurse Jason said
about Boyd and Hodge’s motives, Mr. Johnson nevertheless does not provide sufficient
factual allegations that Boyd and Hodge recklessly disregarded the dangers to Mr.
Johnson’s health. In fact, Mr. Johnson alleges that it was Boyd who finally gave Mr.
Johnson pain medication – though Mr. Johnson claims it did not work – and it was
Hodge who scheduled the physical therapy appointments. Docket 1 at 6, ¶ 2.
Providing ineffective pain medication does not amount to recklessly disregarding Mr.
Johnson’s health. Further, while Mr. Johnson alleges Castillo canceled the
appointments, Mr. Johnson does not allege that Castillo recklessly disregarded the risk
to Mr. Johnson or knew that doing so could result in a substantial risk to serious harm to
Mr. Johnson, but did so anyway. Id. The actions that the prison officials took or failed
to take in Mr. Johnson’s case are not the sort of reckless disregard for Mr. Johnson’s
health that the officials took or failed to take in Green, McCarthy, or Sealock, which Mr.
Johnson also relies upon in his subjective-prong objections. At most, the CDOC
15

defendants were negligent, but, as the magistrate judge concluded, “[a]n inadvertent
failure to provide adequate medical care does not rise to the level of an unnecessary
and wanton infliction of pain.” Docket 134 at 13–14 (quoting Van Riper v. Wexford
Health Serv., Inc., 67 F. App’x 501, 503 (10th Cir. 2003)).
The Court also disagrees with Mr. Johnson’s reading of Farmer, which does not
say that actual knowledge alone is sufficient. Rather, the Supreme Court in Farmer
stated that a prison official “cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” 511 U.S. at 837 (emphasis added). Mr.
Johnson has not adequately alleged that any of the CDOC defendants “dr[e]w the
inference” – that is, that any of the defendants had a “sufficiently culpable state of
mind,” id., to know of and disregard the risk of harm to Mr. Johnson. As a result, the
Court agrees with the magistrate judge that Mr. Johnson has failed to state a claim for a
violation of the Eighth Amendment.
C. Leave to Amend
The general rule in this circuit is 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). This is particularly the case where “deficiencies in a
complaint are attributable to oversights likely the result of an untutored pro se litigant’s

16

ignorance of special pleading requirements.” Id. While Magistrate Judge Hegarty
noted this general rule, he concluded that Mr. Johnson’s claims should be dismissed
with prejudice for his failure to state a claim, as the deficiencies in Mr. Johnson’s
complaint are not because he “is not an ‘untutored’ litigant.” Docket No. 134 at 14.
Rather, the magistrate judge found that Mr. Johnson is a “well educated,
experienced . . . pro se litigant.” Id. (citing Docket No. 28 at 1; Docket No. 38 at 1;
Docket No. 81 at 1). He noted that Mr. Johnson has f iled 40 complaints between
August 2017 and January 2020 and knew “that alleging a culpable state of mind was a
necessary element to his claim.” Docket No. 134 at 15. In fact, Mr. Johnson alleged in
his complaint that the CDOC defendants “knowingly acted with the state of mind
required to establish the Eighth Amendment [v]iolation.” Docket No. 1 at 7.
Furthermore, the magistrate judge concluded that 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.’” Docket No. 134 at 14 (quoting Fleming v.
Coulter, 573 F. App’x 765, 769 (10th Cir. 2014) (unpublished) (quoting Perkins v. Kan.
Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999))). Because Mr. Johnson’s
shortcomings are not because he failed to comply with pleading requirements or did not
know the rules, the magistrate judge recommends dismissal “on the merits.” Id. at 15
(citing Stubblefield v. Henson, 989 F.2d 508 (10th Cir. 1993)).
Mr. Johnson has not objected to this portion of the magistrate judge’s
recommendation. The Court has reviewed the non-objected to portions of the

17

recommendation to satisfy itself that there is “no clear error on the face of the record.”
Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that this portion of the recommendation is a correct application of the facts
and the law, and the Court will dismiss Mr. Johnson’s claims with prejudice.
D. Motion for Preliminary Injunction and Defendant Gary Ward
Magistrate Judge Hegarty recommends denying Mr. Johnson’s motion for a
preliminary injunction, Docket No. 113, which he filed on August 25, 2020. Docket No.
134 at 15. The magistrate judge concludes that, if the Court accepts the magistrate
judge’s recommendations, Mr. Ward would be the only remaining defendant. However,
because Mr. Ward is no longer a CDOC employee, the Court would be unable to
provide Mr. Johnson’s requested relief, and therefore, the motion for preliminary
injunction must fail. Id. at 15–16 (citing West v. Denver Cty. Jail Warden, No. 07-cv00226-REB-KLM, 2008 WL 732600, at *6 (D. Colo. 2008) (“Motion for Preliminary
Injunction must fail because the named Defendants lack the authority to provide
Plaintiff with the relief he desires.”)).
Mr. Johnson objects to this recommendation, arguing that, when a plaintiff
proceeds in forma pauperis, “the district court is responsible for service of the
complaint.” Docket No. 142 at 5. Mr. Johnson claims that the reason Mr. Ward has not
been served is that Magistrate Judge Hegarty has not directed the United States
Marshal to serve him. Id. Mr. Johnson states that the magistrate judge “and the
attorney general can serve [Mr.] Ward at every known address,” id., and that they must
do so, even absent a request, under Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir.

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2003). This is necessary because Mr. Johnson’s preliminary injunction and temporary
restraining order are “impeded upon due to lack of service by the court.” Docket No.
142 at 5.
While it is true that the U.S. Marshals Service will attempt service for plaintiffs
proceeding in forma pauperis, Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d), the
Marshals did attempt to serve Mr. Ward, but could not verify the address Mr. Johnson
provided or whether Mr. Ward lived there. Docket No. 110. Even when the plaintiff is
proceeding in forma pauperis, “[i]t is the plaintiff’s responsibility to provide the United
States Marshal with the address of the person to be served. . . . [T]he Marshal is not
charged with finding a defendant who has moved without providing an accessible
forwarding address.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir.
2007); see also Pemberton v. Patton, 673 F. App’x 860, 864 (10th Cir. 2016)
(unpublished) (“the Marshals service is not responsible for lack of service where plaintiff
does not provide correct information required for service.”). Because Mr. Johnson must
comply with Rule 4 of the Federal Rules of Civil Procedure, see Dona’t v.
Amazon.com/Kindle, No. 19-cv-01222-RM-KMT, 2020 WL 5105171, at *5 (Aug. 31,
2020), Mr. Johnson must show cause why Mr. Ward should not be dismissed for
plaintiff’s failure to serve him.
IV. CONCLUSION
It is therefore
ORDERED that the Recommendation of United States Magistrate Judge [Docket
134] is ACCEPTED. It is further

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ORDERED that the Motion Plaintiffs [sic] Response to Motion 134 [Docket No.
142] is OVERRULED. It is further
ORDERED that the CDOC Defendants’ Motion to Dismiss [Docket No. 64] is
GRANTED. It is further
ORDERED that the plaintiff’s official-capacity claims against May, Allen, Wilson,
Castillo, Hodge, and Boyd are DISMISSED without prejudice. It is further
ORDERED that the plaintiff’s individual-capacity claims against May, Allen,
Wilson, Castillo, Hodge, and Boyd are DISMISSED with prejudice. It is further
ORDERED that plaintiff’s Motion for Preliminary Injunction [Docket No. 113] is
DENIED. It is further
ORDERED that, on or before January 25, 2020, plaintiff shall show cause why
defendant Ward should not be dismissed without prejudice for failure to serve pursuant
to Rule 4 of the Federal Rules of Civil Procedure.

DATED January 7, 2021
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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