United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on Defendant Idaho Department of Corrections, Idaho Attorney General's Office, and Virtual Warden Tim Higgin's (hereinafter the "Idaho State Defendants") Motion to Dismiss (Doc. No. 66, filed Feb. 18, 2014) and incorporated Memorandum in Support (Doc. No. 66-1 [Memo]). For the following reasons, the Idaho State Defendants' Motion to Dismiss is GRANTED.
The following facts are taken from Plaintiff's First Amended Complaint (Doc. No. 25 [FAC]) and the parties briefing with respect to this Recommendation. Plaintiff is an inmate in the custody of the Idaho Department of Corrections (IDOC) who is currently incarcerated at Kit Carson Correctional Center (KCCC) in Burlington, Colorado. (FAC ¶ 1, 20.) Plaintiff alleges that the Idaho State Defendants-along with a number of other Colorado- and Idaho-based defendants-violated his constitutional rights, as well as his rights under the Americans with Disabilities Act, 42 U.S.C § 12181 et seq., by failing to adequately treat his migraine headaches. ( See generally id. )
In June 1996, Plaintiff was sentenced to the care and custody of the IDOC. ( Id. ¶ 19.) From August 1996 through December 1998, Plaintiff was housed at the IDOC's Idaho Correction Institution - Orofino. ( Id. ¶ 20.) During that time, Plaintiff experienced the occasional severe headache, but did not seek medical care as he assumed the headaches were stress-related. ( Id. ¶ 21.)
From December 1998 to January 2002, Plaintiff was housed at the IDOC's Idaho Maximum Security Institution (IMSI). ( Id. ¶ 22.) While at IMSI, Plaintiff's headaches grew more severe and frequent, which prompted Plaintiff to contact the IMSI medical department. ( Id. ¶ 23.) After trying various medications, the IMSI medical department ultimately determined that Imitrex effectively controlled the pain from Plaintiff's migraine headaches. ( Id. ¶ 24.) Plaintiff was permitted to keep his Imitrex on his person. ( Id. )
From January 2002 through the present, Plaintiff was housed at several private prisons operated by Defendant Corrections Corporation of America (CCA). ( Id. ¶ 27.) During that time, Plaintiff was offered pain medications that failed to alleviate the pain associated with his migraines; was denied Imitrex as a "non-formulary" drug; and was thus forced to "self-medicate" by using pain medication available through the prison commissary, such as Tylenol and aspirin. ( See, e.g. id ¶¶ 28-30, 34-35, 53.)
Plaintiff also saw three neurologists for his migraine headaches. ( Id. ¶¶ 42-45, 51-52.) The first two neurologists recommend a combination of a CAT scan, an MRI, a sleep study, a dietary change of avoiding processed meats, and a prescription of Elavil. ( See id. ) The third neurologist stated that it was necessary for Plaintiff to carry Imitrex on his person so that he could counteract migraines as soon as they began. ( Id. ¶ 60.)
Plaintiff was never given a CAT scan or a sleep study and only had one MRI performed in March 2010. ( Id. ¶¶ 46-47.) Plaintiff was also unable to avoid processed meats because it was a "staple" of the prison menu and the available vegetarian diet caused him "gastric distress." ( Id. ¶ 50.) In addition, Elavil did not effectively alleviate Plaintiff's migraines and, further, caused him to be disoriented and inattentive. ( Id. ¶ 53.)
In August 2012, Plaintiff was transferred to KCCC. ( Id. ¶ 62.) Plaintiff met with Defendant Tiona, a doctor at KCCC, about his migraines and proposed that he (1) be issued Imitrex to be carried on his person, and (2) be allowed to wear tinted glasses or sunglasses indoors as the fluorescent lighting at KCCC contributed to his migraine headaches. ( Id. ¶ 66.) Despite acknowledging that photophobia often contributes to migraine headaches, Defendant Tiona did not approve Plaintiff's request for tinted glasses or sunglasses. ( Id. ¶¶ 67-68.) Further, although Plaintiff was given a prescription for Imitrex, he has to go to the KCCC medical department and often wait for hours to obtain a dose of the medication, contrary to the neurologists advice that he take it immediately upon the presentation of migraine symptoms. ( Id. ¶¶ 70-75.)
Plaintiff alleges he brought his medical issues to the attention of IDOC contract monitors who have toured KCCC. ( Id. ¶ 79.) Plaintiff also alleges that he spoke with Defendant Higgins, the IDOC representative responsible for all IDOC inmates housed at KCCC, who told Plaintiff he would get back to him. ( Id. ¶¶ 4, 80.) However, Defendant Higgins never followed-up with Plaintiff. ( Id. ¶ 80.)
Plaintiff alleges that he suffers from chronic kidney disease and that it is a medical fact that prolonged use of aspirin and "NSAIDs" causes liver and/or kidney damage. ( Id. ¶¶ 83-84.) Thus, he alleges that he suffered kidney damage by being effectively forced to take pain medication available through the commissary to treat his migraine headaches. ( Id. ¶¶ 85-91.)
In his First Amended Complaint, filed August 21, 2013, Plaintiff asserts a claim for violations of his rights under the ADA, as well as claims pursuant to 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment rights. After being served on January 28, 2014 ( see Doc. Nos. 58-60), the Idaho State Defendants' Motion and Memorandum to Dismiss were filed on February 18, 2014 ( see Mot. Dismiss; Memo). Plaintiff filed a Response on March 14, 2014 (Doc. No. 76) and the Idaho State Defendants filed a Reply on March 31, 2014 (Doc. No. 80). Accordingly, this matter is ripe for the court's review and recommendation.
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not ...