United States District Court, D. Colorado
BOYD N. BOLAND, Magistrate Judge.
This matter arises on the following motions:
(1) Defendants Hickenlooper and Ritter's Motion to Dismiss [Doc. #29, filed 08/05/2014] ("Hickenlooper's Motion"); and
(2) CDOC Defendants' Motion to Dismiss Amended Complaint filed by defendants Zavaras, Raemisch, Milyard, Falk, Chapdelaine, Soucie, Griffith, Fuller and Lombard (the "DOC defendants") [Doc. #37, filed 08/26/2014] (the "DOC Defendants' Motion")
The motions are GRANTED.
I. STANDARD OF REVIEW
The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
In ruling on a motion to dismiss, the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The complaint must contain specific allegations sufficient to establish that it plausibly supports a claim for relief. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir. 2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).
The plaintiff is currently incarcerated by the Colorado Department of Corrections ("DOC") at the Sterling Correctional Facility ("SCF"). He filed his Amended Prisoner Complaint on May 7, 2014 [Doc. #6] (the "Complaint"). The Complaint contains the following allegations:
1. On February 21, 2008, the City of Sterling's Public Water System sent to its customers a notice that the drinking water contained uranium and other "cancer causing" contaminants. Complaint, p. 7, ¶¶ 1, 3, 4. The notice advised customers not to consume the tap water and recommended drinking water from alternative sources like bottled water. Id. at ¶ 3.
2. The notice "was prompted by" the Colorado Department of Public Health and Environment (the "CDPHE") who, through its Water Quality Control Division, alerted the Sterling Public Water System. The CDPHE reports directly to the Governor of Colorado. The Water Quality Control Commission is statutorily selected and supported by the Governor and his office. Id. at ¶ 2.
3. At the time the notice was issued, Bill Ritter was the Governor of Colorado and Aristedes Zavaras was the Executive Director of the DOC. Id. at ¶ 1.
4. The notice was intentionally kept from the SCF prison population. Id. at ¶ 4. The prison population became aware of the contamination through an article in the local newspaper. Id. at pp. 7-8, ¶ 5.
5. After the prisoners became aware of the contamination, defendant Chapdelaine issued a number of statements to the prison population. Id. at p. 8, ¶ 6. The first statement acknowledged that the city's water was contaminated with hazardous waste and stated that a new state-of-the-art water treatment facility was being built to address the problem. Id. at ¶ 7. The second statement stated that SCF's water came from a totally different and uncontaminated source than the water supplied to the city. Id. at ¶ 8. The third statement stated that SCF's water was safe to consume; SCF's water came from an uncontaminated source; the new water treatment facility was up and running; and the water in the city of Sterling was now free of contaminants. Id. at ¶ 9.
6. The plaintiff believed the statements issued by Chapdelaine and continued to consume the SCF tap water. Id. at ¶ 10.
7. On September 2, 2008, Governor Ritter issued an "Enforcement Order" that declared the Sterling city drinking water to be unsafe for human consumption. Id. at ¶ 11. On September 23, 2008, Governor Ritter issued an order "correcting" the Enforcement Order. Id. at ¶ 12. On July 25, 2013, Governor Hickenlooper issued an amendment to the Enforcement Order. Id. at ¶ 13.
8. On August 22, 2013, DOC Executive Director Raemisch issued a memorandum (the "Raemisch Memorandum") to the prison population which represented that it came from the Governor's office and had been approved by Governor Hickenlooper. The Raemisch Memorandum stated that the DOC "had just discovered, for the first time, via notice from the CDPHE issued February 4, 2013, that the SCF tap water' was contaminated." Id. at pp. 8-9, ¶ 14. The memorandum explained that "people who drink water containing uranium in excess of drinking water standards over many years may have an increased risk of getting cancer and kidney toxicity." The memorandum also stated that some prisoners "may be at increased risk of getting cancer or kidney toxicity and should seek advise from the facility medical staff." Id. at ¶ 15.
9. The plaintiff submitted an Informal Resolution Form on August 28, 2013. He referred to the water report issued on February 2008 and to the statements issued by Chapdelaine. Id. at ¶ 16. He accused SCF officials of lying about the safety of SCF water, the source of the water, and the new state-of-the-art water treatment facility. Id. at ¶ 17. He demanded that SCF officials and medical personnel tell him exactly what was wrong with the water, the ailments caused by consumption of the water, and the appropriate medical care needed for his prolonged exposure to the water. Id. at ¶ 18.
10. On August 28, 2013, Warden Falk issued a memorandum (the "Falk Memorandum") to the SCF prison population which provided much of the same information as the Raemisch Memorandum. Id. at pp. 9-10, ¶¶ 19-20. The Falk Memorandum represented that it came from Governor Hickenlooper's office and had been approved by Hickenlooper and Raemisch. Id. at p. 10, ¶ 21.
11. On September 5, 2013, a "general grievance response" was issued to the plaintiff's Informal Resolution. The response was simply a copy of the Falk Memorandum. Id. at ¶ 22.
12. On September 6, 2013, the plaintiff filed a step one grievance which was a reiteration of his Informal Resolution. Id. at ¶ 23. The grievance was denied by defendant Fuller on September 27, 2013. Fuller attached to the response a form titled "Frequently Asked Questions About Uranium in Drinking Water." The form provided some information regarding possible health risks caused from exposure to the contaminated water. Id. at ¶ 24.
13. On October 9, 2013, the plaintiff filed a step two grievance. Id. at ¶ 25. On November 5, 2013, defendant Soucie responded to the grievance by telling the plaintiff to submit a kite to the medical department concerning the issues raised in his grievance. Id. at pp. 10-11, ¶ 26. The plaintiff submitted a kite to the medical department which stated that he was experiencing nausea, swelling of the gums, and extreme dehydration despite consuming plenty of water. Id. at ¶ 27.
14. On November 14, 2013, the plaintiff submitted a step three grievance, which was denied by defendant Griffith on January 8, 2014. Id. at ¶¶ 28, 37.
15. SCF officials allege that the alternative drinking water was brought in from a correctional facility in Canon City, Colorado. On November 19, 2013, the plaintiff filed an Informal Resolution Form concerning the alternative drinking water. Id. at ¶ 29. The plaintiff explained that the alternative drinking water was causing the same side effects as the contaminated SCF tap water; stated that the alternative drinking water was just as contaminated as the tap water, or was actually tap water; and demanded to know what was in the alternative drinking water. Id. at ¶ 30.
16. On November 30, 2013, the plaintiff was called to the medical department regarding his symptoms. He explained to medical personnel that his gums were swelling, he was nauseous, and he was dehydrated for no apparent reason. Id. at pp. 11-12, ¶ 31. A nurse drew a blood sample, ordered further tests, took his blood pressure, ...