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Brooks v. Colorado Department of Corrections

United States District Court, D. Colorado

October 17, 2014

JASON BROOKS, Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS, DAVID OBA, PATRICK BLAKE, ANGIE TURNER, CORRECTIONS CORPORATION OF AMERICA, DEBRA FOSTER, JULIE RUSSELL, KATHY HOWELL, TIM CREANY, PAUL CLINE, LOU ARCHULETTA, DAVID TESSIERE, RICK RAEMISCH, DOLORES MONTOYA, and RON WAGER, Defendants.

ORDER AND OPINION REGARDING DEFENDANTS' MOTION TO DISMISS IN PART AND PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

CRAIG B. SHAFFER, Magistrate Judge.

This matter comes before the court on a Motion to Dismiss in part (doc. #36) filed on June 13, 2014 by Defendants Colorado Department of Corrections ("CDOC"), Julie Russell, Kathy Howell, Tim Creany, Paul Cline, Lou Archuletta, David Tessiere, Rick Raemisch, Dolores Montoya, and Ron Wager (collectively "CDOC Defendants"). Also before the court is Plaintiff's Motion for Preliminary Injunction (doc #49), filed on August 7, 2014. Pursuant to the Order of Reference dated July 1, 2014, this civil action was referred to the Magistrate Judge "for all purposes" pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). ( See Doc. #44). This court has carefully considered the motions and related briefing, the entire case file, the comments offered by the parties during the June 30, 2014 Scheduling Conference and July 17, 2014 Status Conference, and applicable case law. For the following reasons, I grant the CDOC Defendants' Motion to Dismiss with leave to amend the Eighth Amendment medical claim as asserted against Defendant Tessiere and deny Plaintiff's Motion for Preliminary Injunction.

FACTUAL ALLEGATIONS

Mr. Brooks, a pro se prisoner incarcerated at the Fremont Correctional Facility ("FCF") in Canon City, Colorado, filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming the CDOC Defendants as well as Defendants Patrick Blake, David Oba, Angie Turner, and Corrections Corporation of America ("CCA") (collectively "CCA Defendants") violated his Eighth Amendment right against cruel and unusual punishment, Fourteenth Amendment right to due process, First Amendment right for access to the courts, and withheld accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102 et seq. [1] Plaintiff seeks declaratory relief, injunctive relief, and monetary relief in an unspecified amount.[2]

Plaintiff suffers from chronic ulcerative colitis, which causes inflammation and ulceration of the large intestine. Plaintiff endures symptoms ranging from weight loss and dehydration to intestinal bleeding, rectal bleeding, severe abdominal pain, and muscle atrophy, and is plagued by the persistent need to use the restroom which can result in his taking up to thirty bathroom trips a day. ( See Doc. #11 at p. 13). Plaintiff believes his condition can be managed with "appropriate medications, dietary supplementation, and exercise." (Doc. #11 at p. 13). Plaintiff was diagnosed with ulcerative colitis prior to entering the custody of CDOC in 2009, at which time he measured 6 feet, 3 inches and weighed 143 pounds. ( See doc. #51 at ¶ 9, doc. #51-1 at ¶ 16).

Plaintiff was suffering from aggravated symptoms of ulcerative colitis when he was transferred to Bent County Correctional Facility ("BCCF") in May 2010. Plaintiff saw Defendant Oba in March 2011 after multiple requests to see a doctor, and was prescribed a gluten-free diet.[3] (Doc. #11 at p. 20). Plaintiff alleges in his Motion for Preliminary Injunction that Defendant Oba also prescribed "ensure supplemental shakes" at this time. (Doc. #49 at pp. 1-2). Plaintiff was held at BCCF for approximately 20 months, during which time he claims he received woefully inadequate dental care and treatment for his medical condition.[4]

Plaintiff was transferred from BCCF to Colorado Territorial Correctional Facility ("CTCF") on February 9, 2012 and then to FCF on February 14, 2012. (Doc. #11 at pp. 33, 34). Plaintiff alleges he arrived at FCF in a debilitated state of health because he had not received a gluten-free diet while at CTCF. ( Id. at p. 34). Plaintiff weighed 150 pounds at this time. (Doc. #51 at ¶ 12, Doc. #51-1 at ¶¶ 21, 25). Pursuant to FCF policy, upon arrival Plaintiff was placed under "lock down" in a holding cell for twenty-three hours daily for four to eight days while the prison registered him as an inmate. (Doc. #11 at p. 34). Following this process, and pursuant to FCF policy, Plaintiff was then kept under lock down until he received a work assignment. Plaintiff alleges that as a result, he could not prepare his own meals and was required to eat glutinous food that caused his intestine to bleed. Defendant Creany, the doctor at FCF who treated Plaintiff for ulcerative colitis, prescribed Prednisone to stop the internal bleeding. Plaintiff alleges he had no choice but to accept the medicine, though Prednisone causes joint pain and other adverse side effects in someone with chronic ulcerative colitis. ( See doc. #11 at p. 35). Plaintiff began receiving a gluten-free diet on February 22, 2012, approximately one week after he arrived at FCF ( id. at p. 37), and he was assigned a job in the prison's kitchen on March 30, 3012, approximately six weeks after arriving at FCF. ( Id. at p. 42).

On February 27, 2012, Plaintiff began filing grievances regarding the prison's medical treatment. He complained that "[t]he attempted results of trying to treat my condition thus far have left me incontinent, bleeding, unable to sleep, unable to go to chow, unable to clean myself properly... I should not be in general population being this sick... I need to be put into a cell by myself." (Doc. # 11 at pp. 38-9). He did not receive a response. At this time, Plaintiff also began requesting special drinks such as "Boost" and "Ensure" to supplement his gluten-free diet, extra toilet paper, and special passes that would allow him to exercise and eat at undesignated times. ( Id. at pp. 37, 38, 39). Pursuant to this request, Defendant Montoya, former Health Services Administrator at FCF, authorized a medical pass in March 2012 that allowed Plaintiff to access the cafeteria if he missed a meal due to his condition. ( Id. at p. 39). The medical pass expired after a few months and Defendant Montoya refused to re-issue the pass, or authorize a medical pass allowing Plaintiff to exercise outside of designated times. Defendants Russell, Howell, Creany, Cline, and Tessiere also refused to supply Plaintiff with extra toilet paper.

Plaintiff alleges his condition worsened during March and April 2012 because he did not receive nutritional supplements, his pain medication expired, and his prison job working in the kitchen exacerbated his symptoms. Plaintiff weighed between 144 pounds and 136 pounds in March 2012. ( Id. at pp. 40, 42).

On April 2, 2012, Plaintiff undertook a 72-hour trip to visit Dr. Vahil, a gastronentologist, who recommended removing Plaintiff's large intestine. (Doc. #11 at p. 43). Thereafter in April 2012, Plaintiff began receiving Ensure per instruction from Defendant Howell, the CDOC Regional Director of Clinical Services, to Defendant Creany. Later that month, Defendant Creany revised Plaintiff's medical rating, which allowed Plaintiff to obtain a prison job that was more compatible with his condition. At the end of April 2012, CDOC surgeon, Dr. Tim Brown, recommended that Plaintiff undergo a proctocolectomy and temporary ileostomy. (Doc. #11 at p. 45). Plaintiff met with Defendant Creany in May 2012, to ask for another visit with Dr. Vahil to discuss alternative surgeries and treatments.

On June 8, 2012, Plaintiff attended a meeting with Defendants Creany, Montoya, and Howell, among other case managers, captains, and doctors, which was "specifically held to address Plaintiffs [sic] medical needs, as a response to his and his families [sic] concerns." Doc. #11 at p. 47). Plaintiff alleges that despite this meeting none of his concerns were addressed. In July 2012, Plaintiff received medication prescribed by Dr. Vahil and his condition "dramatically improved." Id. at p. 48. Plaintiff claims that his improvement notwithstanding, he still required a special meal and exercise pass and extra toilet paper, which Defendants refused to provide. Id. A November 19, 2012 blood test ordered by Dr. Vahil suggested that Plaintiff has Chron's disease.[5]

Plaintiff received a gluten-free diet and Ensure without issue until spring of 2013, when CDOC reconfigured the prison system's gluten-free diet, allegedly rendering the meals "inedible" and "calorically insufficient." (Doc. #11 at p. 51, Doc. #49 at ¶ 4). Plaintiff complained about the new diet to Defendant Creany, who arranged for Plaintiff to see FCF's registered dietician, Deborah Cranor, on May 6, 2013. (Doc #49 at ¶ 5, see also Doc. #11 at p. 51). Ms. Cranor reported that Plaintiff's ideal body weight is 190 pounds with a nineteen pound variance, and recommended that Plaintiff drink Ensure "if diet and snacks alone aren't enough to stabilize weight." (Doc. # 49 at ¶ 6 and p. 18, see also Doc. #11 at p. 51). Plaintiff alleges that notwithstanding Ms. Cranor's recommendation, Defendant Tessiere, the Health Services Administrator at FCF, determined Plaintiff did not qualify for Ensure and instructed Defendant Creany not to supply it. (Doc. #11 at p. 51). Plaintiff met with nurse practitioner Sheryl McKim on May 21, 2013 to discuss his dietary needs and Ms. McKim advised Plaintiff that he "will probably be prescribed the ensure supplemental shakes at his next appointment in June." ( See doc. #49 at ¶ 9 and p. 20). In August 2013, Defendant Creany again told Plaintiff that Defendant Tessiere had said Plaintiff "does not qualify for [Ensure], " but would authorize the supplemental shakes if Dr. Vahil recommended them. (Doc. #49 at ¶ 13).

Plaintiff's next visit with Dr. Vahil occurred almost one year later, on June 10, 2014, where Dr. Vahil ordered that Plaintiff receive "a gluten-free diet with ensure, one can of ensure three times daily." (Doc. #49 at ¶ 16; Doc. #49-1 at p. 2). Plaintiff began receiving a gluten-free diet plus Ensure drinks on July 21, 2014. (Doc. #49 at ¶ 19). Plaintiff alleges that after only two days the specialized diet was withheld because "Defendant Tessiere allowed another nurse practitioner, Trudy Sicotte, the ability to undermine [] orders, and she [took] away the diet and ensure without excuse." ( Id. at ¶ 20). Plaintiff also alleges that Defendant Tessiere "has exercised no control over his medical staff's egregious decisions or acknowledges how ridiculous they are; he's [sic] seems to be completely absent or totally incompetent in performing any of his job duties." ( Id. at ¶ 21).

PROCEDURAL BACKGROUND

Plaintiff filed his Complaint on October 23, 2013 (doc. #1), and simultaneously filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (doc. #3) and a motion for preliminary injunction (doc. #4). On October 24, 2013, the court granted Plaintiff's § 1915 motion (doc. #5) and ordered Plaintiff to file an amended complaint that complied with Fed.R.Civ.P. 8.[6] (Doc. #6). Plaintiff moved for appointment of counsel on November 8, 2013 (doc. #7). On November 13, 2013, the court denied Plaintiff's request for appointment of counsel and motion for preliminary injunction. (Doc. #8). On November 22, 2013, the court granted Plaintiff's motion for an extension of time to amend his complaint (doc. #10 and doc. #9), and on December 26, 2013, Plaintiff filed a 72-page Amended Complaint asserting thirteen claims (doc. #11). On March 18, 2014, the court dismissed Plaintiff's seventh and tenth claims as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B), [7] thereby dismissing Defendants DeCesaro and Brown from this lawsuit. (Doc. #14).

Defendants waived service on March 24, 2014, with the exception of Ms. Foster and Ms. Montoya, who are no longer employed by CDOC (doc. #19). Defendant Montoya was personally served on April 9, 2014. ( See Doc. #31). To date, Ms. Foster has not been served. The CCA Defendants waived service on April 2, 2014 (doc. #25). On May 20, 2014, Defendants requested an extension of time to respond to the Amended Complaint (doc. #32), which this court granted on May 21, 2014 (doc. #33). The CCA Defendants filed an Answer to the Amended Complaint on May 27, 2014 (doc. #34), along with CCA's corporate disclosure statement (doc. #35).

Defendants filed a Motion to Dismiss the Amended Complaint in part and an Answer on June 13, 2014. (Doc. #36 and #37). This court held a Scheduling Conference on June 30, 2014, at which the undersigned set a date for a status conference and stayed discovery pending the briefing of the Motion to Dismiss. (Doc. #41). Defendants and CCA Defendants filed their written consent to the Magistrate Judge's jurisdiction on June 30, 2014 (doc. #43), and Plaintiff filed his consent on July 22, 2014 (doc. #47). Plaintiff filed his Response to the Motion to Dismiss on July 14, 2014 (doc. #45). This court held a Status Conference on July 17, 2014, at which the undersigned continued the stay on discovery pending this court's decision on the Motion to Dismiss. (Doc. #46). Defendants filed a Reply in support of their Motion to Dismiss on July 28, 2014 (doc. #48). Plaintiff filed a Motion for Preliminary Injunction on August 7, 2014 (doc. #49), asking the court to order CDOC to provide him with "an acceptable gluten-free diet and ensure nutritional supplements." The CCA Defendants filed a Response to the Motion for Preliminary Injunction on August 27, 2014 (doc. #50), and Defendants filed a Response on August 28, 2014 (doc. #51). Between September 8, 2014 and September 17, 2014, Mr. Brooks as well as non-parties Kavin Smith, Troy Brownlow, James Hunt, and Cesar Briones Madrid submitted declarations in support of Plaintiff's Motion for Preliminary Injunction. ( See doc. #52-57). On October 10, 2014, Mr. Brook's mother, non-party Vayah Terra, submitted a declaration in support of the Motion for Preliminary Injunction (doc. #58).

STANDARD OF REVIEW

A. Fed.R.Civ.P. 12(b)(1) and 12(b)(6)

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

Because Mr. Brooks is appearing pro se, the court "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 Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) ("[Court's] role is not to act as [ pro se litigant's] advocate"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed.R.Civ.P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).

B. Injunctive Relief

To succeed on a motion for a preliminary injunction under Fed.R.Civ.P. 65, the moving party must show (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009) (quoting Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal quotations omitted). Granting such "drastic relief, " United States ex. rel . Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), "is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).

Three types of preliminary injunctions are disfavored: injunctions that alter the status quo; mandatory injunctions; and injunctions that afford the movant all the relief he could recover following a full trial on the merits. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). In seeking these types of relief, the movant must show that the factors cited above "weigh heavily and compellingly in [his] favor." Id. Finally, Title 18 U.S.C. § 3626(a)(2) requires that, "[i]n any civil action with respect to prison conditions, " any "[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm."

ANALYSIS

A. Motion to Dismiss

1. Eleventh Amendment Immunity

Plaintiff is suing Defendants Russell, Howell, Creany, Cline, Archuletta, Tessiere, and Wager in their official and individual capacities. Plaintiff is suing Defendant Raemisch in his official capacity only and Defendant Montoya in her individual capacity only. Those Defendants sued in their official capacity are immune from claims for monetary damages and retroactive equitable relief. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72, (1985)). The Eleventh Amendment bars suits against a state by its own citizens, and immunizes state defendants sued in their official capacities from liability for damages or equitable relief. See Johns v. Stuart, 57 F.3d 1544, 1552 (10th Cir. 1995). Furthermore, state employees acting in their official capacities are not "persons" subject to suit under § 1983. Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). Accordingly, Plaintiff cannot pursue a § 1983 claim for damages or declaratory relief against the CDOC Defendants who are sued in their official capacity.

2. Eighth Amendment Claims

Title 42 U.S.C. § 1983 allows an injured person to seek damages for the violation of his or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988). "[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). "The Eighth Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm." Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (citation omitted). The Eighth Amendment also prohibits "unnecessary and wanton infliction of pain, " including "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials may be liable for an Eighth Amendment violation for "indifference... manifested... in their response to the prisoner's needs or by... intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed." Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014).

"The test for constitutional liability of prison officials involves both an objective and a subjective component." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotations and citation omitted). First, the prisoner must "produce objective evidence that the deprivation at issue was in fact sufficiently serious.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). "[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." Mata, 427 F.3d at 751 (holding that even a physician's grossly negligent medical judgment is not subject to scrutiny if the prisoner's need for medical treatment was not obvious) (internal quotations and citation omitted). Furthermore, a delay in medical care "only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm." Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations and citation omitted). The substantial harm requirement "may be satisfied by lifelong handicap, permanent loss, or considerable pain." Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citation omitted).

Second, under the subjective component, the prisoner must establish deliberate indifference to his serious medical needs by "present[ing] evidence of the prison official's culpable state of mind." Mata, 427 F.3d at 751. "Deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104 (internal quotation and citation omitted). The Tenth Circuit recognizes two types of conduct constituting deliberate indifference. The first occurs when a medical professional fails to properly treat a serious medical condition; the second occurs when a prison official prevents an inmate from receiving treatment or denies him access to medical personnel capable of providing treatment. See Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (internal citations omitted). A prison health official who serves "solely... as a gatekeeper for other medical personnel capable of treating the condition' may be held liable under the deliberate indifference standard if she delays or refuses to fulfill the gatekeeper role.'" Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1211. The subjective standard requires a state of mind "akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm." Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837) (internal quotations and further citation omitted). "[A]n inadvertent failure to provide adequate medical care' does not rise to a constitutional violation." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Estelle, 429 U.S. at 105-06). The plaintiff must allege that defendants personally participated in the Eighth Amendment violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)). "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence." Self, 439 F.3d at 1231 (internal quotations omitted).

Mr. Brooks claims he suffered cruel and unusual punishment at FCF resulting from various Defendants' failure to authorize (1) an adequate gluten-free diet; (2) extra toilet paper; and (3) passes that would allow him to eat and exercise at undesignated times. Plaintiff claims additional violations of his Eighth Amendment rights resulting from policies implemented at FCF by Defendants Archuletta and Wager, Defendant Cline's decision to transfer him to FCF, and the CDOC's failure to properly train its employees in ADA law. Defendants argue that Plaintiff has not demonstrated a serious medical need, has not established that Defendants Tessiere, Archuetta, and Wager acted with deliberate indifference, and has not alleged that Defendants Howell, Russell, Wager, Archuletta, Cline, and Tessiere personally participated in a constitutional violation. At this stage in the litigation the court must "accept as true all well-pleaded factual allegations" and view those allegations "in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010).

a. Plaintiff's Dietary Needs

Mr. Brooks alleges he cannot maintain a healthy weight eating the CDOC-sanctioned gluten-free diet without supplemental nutrition in the form of Ensure. Plaintiff is forced to eat glutinous foods to maintain a healthy weight, which aggravates his ulcerative colitis and causes him constant pain and discomfort. Specifically, Plaintiff suffers from internal bleeding, controlled only by pain medication that weakens his joints; incessant urges to use the bathroom that prevent him from obtaining regular meals, exercise, and sleep; and severe dehydration. These allegations establish that Plaintiff has a sufficiently serious medical need for a specific diet.

Plaintiff does not state in the Amended Complaint how long he received Ensure after it was first provided in April 2012 or why the provision ended. However, Plaintiff resumed requesting the supplemental drink in May 2013 and Tessiere allegedly refused to authorize it on the basis that Plaintiff did not qualify. (Doc. #11 at p. 51). This alone is insufficient to demonstrate that Tessiere consciously disregarded a substantial risk to Plaintiff's health or abdicated his duty as gatekeeper. See Mata, 427 F.3d at 751 (citing Sealock, 218 F.3d at 1211). See also Estelle , 429 U.S. at 104-105 (deliberate indifference is manifested by prison personnel "in intentionally denying or delaying access to medical care"). Deliberate indifference lies where "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." Self, 439 F.3d at 1231 (quoting Farmer, 511 U.S. at 837) (internal quotations omitted).

This court declines to take judicial notice sua sponte of allegations asserted in Plaintiff's Motion for Preliminary Injunction ( see U.S. v. Smalls, 605 F.3d 765, 768 n. 2 (10th Cir. 2010) (instructing that a court may take judicial notice of district court filings)), though notes that certain allegations contained therein are relevant to the subjective component of Plaintiff's Eighth Amendment medical claim. Therefore Defendants' Motion to Dismiss in part is granted with leave to amend as to the medical claim raised against Defendant Tessiere. Plaintiff is also given leave to add nurse practitioner Sicotte as a defendant should he choose to file a Second Amended Complaint.

b. Specialized Meal and Exercise Passes, and Extra Tissue

Plaintiff claims Defendants Russell, Howell, Cline, Creany, Montoya, and Tessiere refused to authorize these special items, which were necessary for him to accommodate the symptoms caused by his ulcerative colitis. Plaintiff sought the meal pass so that he could eat before or after designated times in the event he was too ill to attend meals. Though he appears to have requested the pass as a preventative caution ( see doc. #11 at p. 39), he also alleges he missed "hundreds of meals" as a result of his medical condition ( see doc. #11 at p. 56). Defendant Montoya authorized the meal pass on March 5, 2012. ( Id. at p. 39). Plaintiff asked Montoya to renew the pass in June 2012, and she declined. ( Id. at p. 47). Plaintiff began receiving a medical diet in February 2012, two weeks after he arrived at FCF, and began receiving Ensure in April 2012, two months after he arrived at FCF. (Doc #11 at pp. 37, 43-44). Therefore, by June 2012 he was receiving a gluten-free diet plus supplemental drinks. Plaintiff does not allege why his ulcerative colitis caused him to continue to miss meals if he was receiving his requested medical diet.

Plaintiff alleges that his condition periodically prevented him from engaging in recreation during the designated hours. However, he does not allege that he was wholly prevented from exercising as a result of Defendants' refusal to authorize a special pass. Denial of a flexible exercise schedule does not give rise to an Eighth Amendment violation. See Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that an allotted one hour per week in an outdoor exercise facility, while restrictive, did not in and of itself rise to level of an Eighth Amendment violation; and, recognizing that courts have not deemed the denial of fresh air and exercise to be a "per se" Eighth Amendment violation); cf. Mitchell v. Rice, 954 F.2d 187, 192 (4th Cir. 1992) ("[A] total or near-total deprivation of exercise or recreational opportunity, without penological justification, violates Eighth Amendment guarantees.") (citations omitted). Moreover, on May 6, 2013, Ms. Cranor recorded that Plaintiff has "[e]nergy to work out daily - primarily weights with basketball at times." (Doc. #49 at p. 18). While "no precise standards have been set forth delineating what constitutes constitutionally sufficient opportunities for exercise, " Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994) abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996), it is clear from Plaintiff's allegations that he regularly participates in some exercise.

Finally, Plaintiff claims extra toilet paper is necessary to accommodate his increased need to use the restroom arising from the unmanaged ulcerative colitis. Plaintiff does not allege, however, that Defendants refused toilet paper altogether or that the lack of additional toilet paper resulted in serious injury. See Whittington v. Ortiz, 472 F.3d 804, 808 (10th Cir. 2007) ("A deprivation of hygiene items without any corresponding injury would not state an Eighth Amendment violation.") (citation omitted). He claims only that he did not receive his preferred allotment of tissue. Accordingly, Defendants' failure to authorize additional toilet paper did not result in a sufficiently serious deprivation.

Defendants' Motion to Dismiss in part is granted as to the Eighth Amendment conditions of confinement claims with leave to amend as to why Plaintiff required a meal pass after he began receiving his medical diet plus supplements.

c. FCF Policies

Plaintiff alleges that Defendants Archuletta and Wager, the respective Warden and Assistant Warden of FCF, implemented several policies that violated the Eighth Amendment prohibition against cruel and unusual punishment. Pursuant to these policies, each inmate is confined to his cell 24 hours a day for four to eight days upon transfer to FCF. Thereafter, offenders without work assignments are confined to their cells forty hours each week while their fellow inmates report to prison jobs. The inmates are allowed two continuous hours of recreation per day, though the facility does not provide a scheduled interval during which inmates can return to their cells. Plaintiff claims the lock down policies prevented him from engaging in adequate exercise when he arrived at FCF and the recreation policy prevents him from returning to his cell if his symptoms so demand.

"[Section] 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which subjects, or causes to be subjected' that plaintiff to the deprivation of any rights... secured by the Constitution....'" Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (quoting 42 U.S.C. § 1983). Thus, "the establishment or utilization of an unconstitutional policy or custom can serve as the supervisor's affirmative link to the constitutional violation.... [W]here an official with policymaking authority creates, actively endorses, or implements a policy which is constitutionally infirm, that official may face personal liability for the violations which result from the policy's application.'" Dodds, 614 F.3d at 1199 (quoting Davis v. City of Aurora, 705 F.Supp.2d 1243, 1263-64 (D. Colo. 2010)) (internal quotations omitted). For a plaintiff to succeed under this theory, he must demonstrate: "(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation." Id.

Pursuant to the policies, Plaintiff spent forty-five days in lockdown when he arrived at FCF. (Doc. #11 at p. 61). He does not allege that all exercise was unavailable during this time, or that a physician ordered him to engage in a certain amount of exercise. Plaintiff has established a serious medical need for a specialized diet, not for a specific exercise regimen. However, even if I found that the lock down and recreation policies subjected Plaintiff to the unnecessary and wanton infliction of pain, he has not alleged that Archuletta and Wager acted with deliberate indifference to his medical needs. See Farmer, 511 U.S. at 847 (A prison official acts with deliberate indifference "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."). Plaintiff argues he wrote Archuletta and Wager a letter explaining his concerns and they "continue[d] to maliciously, wantonly, and recklessly allow Plaintiff to suffer further by doing nothing and allowing these unjustified conditions of confinement to continue." (Doc. #11 at pp. 62-63). These allegations do not establish that Archuletta and Wager consciously disregarded a substantial risk that Plaintiff would suffer harm. Furthermore, they fail to establish that these Defendants personally participated in a constitutional violation. See Davis v. Arkansas Valley Corr. Facility, 99 Fed.Appx. 838, 843 (10th Cir. 2004) (holding defendant warden was not implicated under § 1983 merely because plaintiff copied him on correspondence outlining complaints about medical care); see also Crowder v. Lash, 687 F.2d 996, 1005-6 (7th Cir. 1982) (rejecting theory that defendant prison official should be held liable for constitutional violations on the basis that plaintiff had informed him personally and by letter of the "deprivations [plaintiff] had encountered."); Doyle v. Cella, 2008 WL 4490111, at *2 (D. Colo. Sept. 30, 2008) (finding plaintiff's allegation that defendant warden was "made aware" of constitutional violations insufficient to establish personal participation of the defendant); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y. 1997) ("The law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish liability.") (internal citations omitted).

Finally, there is no evidence that the FCF policies are unconstitutional. "[W]here the policy relied upon is not itself unconstitutional, considerably more proof than a single incident will be necessary in every case to establish both the requisite fault on the part of the [government], and the causal connection between the policy and the constitutional deprivation.'" Anglin v. City of Aspen, 562 F.Supp.2d 1304, 1324 (D. Colo. 2008) (quoting Okla. City v. Tuttle, 471 U.S. 808, 824 (1985) (internal quotations omitted). Plaintiff's allegations would not satisfy this requirement even if he had alleged a constitutional deprivation.

d. Transfer from BCCF to FCF

Mr. Brooks claims Defendant Cline acted with deliberate indifference to his medical needs when Cline transferred him from BCCF to FCF, and failed to transfer him out of FCF despite his "pain, suffering, and emotional distress." (Doc. #11 at p. 61). Plaintiff further claims that Cline did not communicate to his superiors concerns expressed by Plaintiff's mother.

Plaintiff alleges in his Amended Complaint that FCF is an unsuitable facility due to its mandatory lockdown and recreation policies that periodically prevent him from partaking in exercise. This cannot serve as the basis for an Eighth Amendment violation because Plaintiff has not established a serious need for a specific amount of exercise, nor has he alleged that exercise is so limited as to give rise to cruel and unusual circumstances. Plaintiff has serious dietary needs as a result of his ulcerative colitis, though his symptoms appear to be manageable if he can adhere to a stringent diet. Plaintiff has not alleged that FCF barred prisoners from receiving special diets or restricted certain foods, or that he was under physician's orders to receive treatment that was not available at FCF. Defendant Tessiere's refusal to authorize Ensure prior to a doctor's order is unrelated to FCF's suitability as a facility. Therefore, Plaintiff has not demonstrated that the conditions of his confinement at FCF are sufficiently serious

Moreover, Plaintiff has not alleged that Defendant Cline acted with deliberate indifference.[8] Even if Cline was aware that Plaintiff required a gluten-free diet plus nutritional supplements ( but see Crowder, 687 F.2d at 1005 (rejecting theory that defendant prison official should be held liable for constitutional violations on the basis that plaintiff had informed him personally and by letter of the "deprivations [plaintiff] had encountered")), Plaintiff has not shown that Cline knew those provisions were inaccessible at FCF. Indeed, Plaintiff ultimately received a gluten-free diet plus Ensure while at that facility. To the extent Plaintiff experienced pain and suffering at FCF as a result of consuming glutinous foods, he has not alleged that Cline knew prison officials refused to supply the supplemental shakes, or that Cline was personally involved in Defendant Tessiere's failure to authorize Ensure prior to a doctor's order. Finally, ignoring concerns expressed by Plaintiff's mother does not give rise to an Eighth Amendment violation. See Doyle, 2008 WL 4490111, at *2 (finding plaintiff's allegation that defendant warden was "made aware" of constitutional violations insufficient to establish personal participation of the defendant).

e. CDOC

Plaintiff alleges that CDOC violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to train its employees with regard to the ADA. Section 1983 authorizes injured parties to seek monetary damages for the violation of a constitutional right by a person acting under color of state law. 42 U.S.C. § 1983. The Department is not a person as contemplated by § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Furthermore, the Department is entitled to Eleventh Amendment immunity for claims seeking monetary damages. The Department is not immune to suits for prospective injunctive relief ( see id. at n. 10), however, Plaintiff does not seek such relief here. ( See Doc. #11 at pp. 66-67, 71-72).

3. Fourteenth Amendment Claim

Plaintiff claims he has a protected interest in being housed at a prison facility that can better accommodate his health needs, and that Defendants violated his Fourteenth Amendment right to due process when they refused to authorize his transfer from FCF. Though not entirely clear, Plaintiff appears to allege the conditions of confinement at FCF present an atypical and significant hardship because of the policies described above regarding mandatory periods of lock down and daily recreation.

The Fourteenth Amendment prohibits any State from depriving a person of life, liberty, or property without due process of law. An inmate is not entitled to a particular degree of liberty in prison. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (holding prisoner did not have liberty interest in a general population classification) (citation omitted); see also Meachum v. Fano, 427 U.S. 215, 224 (1976) (following a valid conviction, "the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution."). Nor does an inmate have a protected interest in being housed in a certain prison facility. See Meachum, 427 U.S. at 216. "A protected liberty interest only arises from a transfer to harsher conditions of confinement when an inmate faces an atypical and significant hardship... in relation to the ordinary incidents of prison life.'" Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 223 (2005)) (further citation omitted). See also Sandin v. Conner, 515 U.S. 472 (1995) (only liberty interest in prison is freedom from atypical and significant hardship created by restraint, and administrative segregation, in itself, is neither).

The Tenth Circuit has instructed courts to follow a two-fold question in evaluating an inmate's challenge to the conditions of his confinement: "what is the appropriate baseline comparison"; and "how significant must the conditions of confinement deviate from the baseline to create a liberty interest in additional procedural protections." Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007) (assessing whether inmate's administrative segregation violated a liberty interest). The court advised that a few key factors are relevant in answering the baseline question, such as whether: "(1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement; and (4) the placement is indeterminate." Id. The court subsequently clarified that the DiMarco factors are instructive, not dispositive, and the inquiry should consist of "a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Rezaq, 677 F.3d at 1012 n. 5.

There can be no question that FCF's lock down policies further the legitimate penological interest of properly documenting each new prisoner upon arrival prior to assimilating him into the general population, and accounting for each prisoner during the day if he does not report to a prison job. FCF's policy regarding exercise similarly furthers a legitimate penological interest. Two hours of recreation is undoubtedly healthier than one; but without an overarching need to provide inmates the option of returning to their cells after one hour, the benefit of allowing prisoners flexibility in leaving recreation is outweighed by the burden of supplying and coordinating the manpower needed to escort prisoners at various times.[9] Indeed, all inmates at FCF are subject to these rules. It is not for this court to question policies designed by prison officials where the benefits of such policies are clear on their face. See DiMarco, 473 F.3d at 1342 ("any assessment [of conditions of confinement] must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts.").

Furthermore, the conditions of Plaintiff's confinement are not extreme. He alleges he spent forty-five days in lock down upon arrival at FCF. Once he received a work assignment he was removed from lock down status. Plaintiff's placement at FCF did not increase the duration of his confinement; and while the placement appears to be indeterminate, the mandatory periods of lock down no longer apply to Plaintiff because the prison has processed his paperwork and assigned him to a job. Plaintiff complains that the two-hour periods of recreation are the only opportunities for an inmate to exercise outside of his cell, and that he cannot always attend recreation because of his health. (Doc. #11 at p. 62). However, this court is unaware of, and Plaintiff has not cited, law indicating that the deprivation of a flexible exercise schedule constitutes an atypical and significant hardship. Cf. Wilkinson, 545 U.S. at 214 (finding atypical and significant hardship created by daily 23-hour lockdown, solitary dining, no outdoor recreation, and no communication with other inmates). Accordingly, the four DiMarco factors weigh against finding a liberty interest.

Finally, to the extent Plaintiff claims the conditions of his confinement were harsher at FCF as a result of an inadequate diet and inconsistent access to medical attention, Plaintiff encountered many of the same problems at FCF as he experienced at BCCF.[10] Plaintiff claims he should have been transferred to Arkansas Valley Correctional Facility or CTCF, but fails to explain why either of those facilities were better equipped to manage his medical condition.[11] Short of stating in conclusory fashion that he experienced an atypical and significant hardship at FCF, Plaintiff does not illustrate how his perceived hardship at that facility was out of proportion to routine prison life, especially considering the short duration of the in-take process and the relatively short period of time before he was assigned a prison job. As for the two-hour recreation period, that "life in one prison is much more disagreeable that in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred..." Meachum, 427 U.S. at 225.

Plaintiff also claims he has experienced denial of due process because CDOC has failed to implement policies that allow for the "correct institutional placement of inmates with serious medical needs." (Doc. #11 at p. 68). However, no particular process was constitutionally due or required because Plaintiff was not deprived of any liberty to which he was entitled. See Templeman, 16 F.3d at 371. Nor is the denial of process itself a denial of liberty. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983) ("Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement."); Doyle v. Oklahoma Bar Ass'n, 998 F.2d 1559, 1570 (10th Cir. 1993). Because Plaintiff had no liberty interest in being housed at a particular prison, the Constitution did not require any particular process to that end.

4. Qualified Immunity

Plaintiff sued Defendants Russell, Howell, Creany, Cline, Archuletta, Tessiere, Wager, and Montoya in their individual capacities. The doctrine of qualified immunity "shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (internal quotation marks omitted). Qualified immunity is an affirmative defense to section 1983 liability ( see Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)); once a defendant asserts the defense, the plaintiff must demonstrate that qualified immunity is not proper by showing 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, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255).

I find that Defendants Cline, Archuletta, and Wager are entitled to qualified immunity because Plaintiff has not stated a constitutional claim as to them. To the extent Plaintiff may amend his complaint as to the Eighth Amendment medical claim raised against Defendant Tessiere and the Eighth Amendment confinement claim as to the meal pass, a ruling as to whether Defendants Russell, Howell, Montoya, Tessiere, and Creany are entitled to qualified immunity is premature.

5. Americans with Disabilities Act

Plaintiff claims that Defendants Russell, Howell, and Tessiere violated the ADA when they failed to supply him with special meal and exercise passes and extra tissue paper. Plaintiff further claims that Defendant Tessiere violated the ADA when he failed to provide him with an adequate gluten-free diet; Defendant Cline violated the ADA by transferring him to FCF and failing to authorize his transfer to a more suitable facility; Defendants Archuletta and Wager violated the ADA by implementing the lock down and recreation policies at FCF; and Defendant CDOC violated the ADA by failing to properly train its employees in ADA law.

Pursuant to Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. This provision extends to discrimination against prisoners. See Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To state a Title II claim, Plaintiff must allege that "(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir. 2007) (citing 42 U.S.C. § 12132) (further citation omitted). Plaintiff must show that he was qualified to receive the benefits he sought and was denied those benefits based solely on his disability. Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005).

An individual is qualified as disabled under the ADA if he has a physical or mental impairment that substantially limits one or more major life activities. See Holt v. Grand Lake, 443 F.3d 762, 765 (10th Cir. 2006). Plaintiff claims the ulcerative colitis is managed with "appropriate medications, dietary supplementation, and exercise" (doc. #11 at p. 13), and alleges significant pain and discomfort when his condition is not properly managed. However, he has not alleged that ulcerative colitis substantially limits his major life activities; he claims only that his ability to attend regularly scheduled meals and recreation is curtailed when his symptoms are inflamed.

Even if Plaintiff were disabled under the ADA, his allegations do not establish that Defendants denied him services that were provided to other prisoners. Cf. Rashad v. Doughty, 4 Fed.Appx. 558, 560 (10th Cir. 2001) (citing McNally v. Prison Health Servs., 46 F.Supp.2d 49, 58 (D. Me. 1999) for the proposition that an HIV-positive prisoner may have stated an ADA claim by alleging he was denied services provided to other prisoners). Plaintiff eats and exercises regularly and receives the same allotment of toilet paper as all inmates; the special passes and additional tissue Plaintiff requested would have provided him greater access than what was available to the other prisoners. Plaintiff's allegations regarding his transfer to FCF, the implementation of certain policies at FCF, and the training of CDOC employees in ADA law similarly do not establish that Defendants prevented him from partaking in activities or services that were available to other inmates. As for Plaintiff's difficulty in procuring a gluten-free diet plus Ensure, "failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation." Rashad, 4 Fed.Appx. at 560 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)) (concluding that the ADA "would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners" and that the statute "does not create a remedy for medical malpractice"). While the delay in providing the gluten-free diet may constitute negligence, "negligence alone cannot support a Title II claim." Morris v. Kingston, 368 Fed.Appx. 686, 690 (7th Cir. 2010). Nor has Plaintiff alleged that Defendants acted with a discriminatory motive in denying him the accommodations he requested. See Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (instructing that discriminatory motive must be a "determining factor" in defendants' actions). Damages under the ADA are available only if a public official intentionally discriminates because of a disability. See Garcia v. S.U.N.Y. Health Services Center of Brooklyn, 280 F.3d 98, 111-12 (2d Cir. 2001).

Finally, Mr. Brooks cannot sue Defendants in their individual capacities for liability under the ADA. See Butler v. City of Prairie Village, Kansas, 172 F.3d 736, 744 (10th Cir. 1999) (noting that the reasons for precluding individual liability under Title VII apply equally to ADA). Cf. Sindram v. Merriwether, 507 F.Supp.2d 7, 11-12 (D.D.C. 2007) and cases cited therein. "[T]he proper defendant in a Title II claim is the public entity itself or an official acting in his or her official capacity." Hicks v. Keller, No. 11-cv-0422-WJM-KMT, 2012 WL 1414935, at *6 (D. Colo. April 24, 2012). Any ADA claims against Defendants in their individual capacities must be dismissed.

B. Preliminary Injunction

Plaintiff filed a Motion for Preliminary Injunction (doc. #49) on August 7, 2014. Plaintiff alleges therein that he continues to receive inadequate health care at FCF; specifically, Dr. Vahil prescribed Ensure for him, he subsequently received the drink for only two days, and he is unable to maintain a healthy weight consuming only the gluten-free diet. Plaintiff asks the court to order CDOC employees to supply him with "an acceptable gluten-free diet and ensure nutritional supplements."

A party seeking preliminary injunctive relief must satisfy four factors: a likelihood of success on the merits; a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant's favor; and that the injunction is in the public interest. RoDa Drilling Co., 552 F.3d at 1208. Plaintiff must show that these four factors "weigh heavily and compellingly in [his] favor, " because he is seeking a mandatory injunction and the same relief he would be entitled to should he prevail on the merits. See Fundamentalist Church of Jesus Christ of Latter-Day Saints, 698 F.3d at 1301 (citation omitted).

Plaintiff's Motion for Preliminary Injunction implicates only Defendants Tessiere and Creany and non-party Sicotte. Plaintiff is not entitled to injunctive relief as to Defendant Tessiere because he has not shown a likelihood of success on the merits as to the constitutional claims brought against Tessiere. Defendant Creany did not move to dismiss the constitutional claims raised against him; however, he is no longer employed at FCF and no longer responsible for ordering the shakes. ( See doc. #49 at p. 8). Furthermore, Plaintiff's allegations demonstrate that Ms. Sicotte is the individual responsible for withholding the Ensure shakes from Plaintiff despite Dr. Vahil's recommendation and Tessiere's authorization. While Ms. Sicotte's non-party status does not on its own preclude this court from issuing an injunction directed at her, "it nevertheless heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors... but those considerations must also constitute... appropriate circumstances'... to justify issuing an injunction against a non-party." Andrews v. Andrews, 160 Fed.Appx. 798, 799-800 (10th Cir. 2005) (quoting United States v. New York Telephone Co., 434 U.S. 159 (1977)).

I need not address whether appropriate circumstances exist because I find that Plaintiff has not made a compelling showing that he is likely to suffer irreparable harm in the absence of preliminary relief. "To constitute irreparable harm, an injury must be certain, great, actual and not theoretical." Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotations and citations omitted). Irreparable harm is defined as something greater than "merely serious or substantial harm, " and the moving party "must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm." Id. Defendant Creany attests that in August 2013, Plaintiff weighed 158 pounds, trained with weights twice a week, played softball twice a week, and believed that his condition had improved significantly. (Doc. #51 at ¶ 34, Doc. #51-1 at ¶ 63). At this time, Plaintiff purportedly expressed to Defendant Creany his dislike for the gluten-free diet and asked that Ensure drinks be supplied to him. ( See id. at ¶ 35, Doc. #51-1 at ¶¶ 64, 65). Creany explained that he did not think Ensure was medically necessary given Plaintiff's current state of health. Plaintiff responded that he would assume responsibility for managing his gluten intake and asked to receive a standard diet, which was thereafter provided.[12] ( See id. at ¶¶ 35-36, Doc. #51-1 at ¶ 65). Between April 2014 and June 2014, Plaintiff reported success in managing his condition, and Dr. Vahil noted that the ulcerative colitis had improved significantly. ( See doc. #51 at ¶¶ 39, 41, Doc. #51-1 at ¶¶ 69, 72). In light of evidence that Plaintiff voluntarily forwent his prescribed medical diet over a year ago, maintains a reasonable weight for his body mass index, is not malnourished according to laboratory reports, continues to eat the standard diet, and expressed satisfaction with the management of his condition as recently as April 2014 (doc. #51 at ¶¶ 49, 72, 73, doc. #51-1 at ¶¶ 69, 77, doc. #51-2 at p. 33, and doc. #51-3 at ¶¶ 23, 31), I cannot find that Plaintiff is in imminent danger of irreparable harm. Accordingly, Plaintiff's Motion for Temporary Restraining Order is denied.

CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss in part (doc. #36) is GRANTED, and Plaintiff's Motion for a Preliminary Injunction (doc. #49) is DENIED. Plaintiff may file a second amended complaint within 30 days of the date of this Order and Opinion.

Richmond Jay Brownson, Timothy Morris White, Aaa Disability Advocates PC, Tulsa, OK, for Plaintiff.

Social Security Administration, pro se.

Cathryn Dawn McClanahan, United States Attorney's Office, Tulsa, OK, Dianne Mullins Pryor, Social Security Administration, Dallas, TX, for Defendant.

OPINION AND ORDER

PAUL J. CLEARY, United States Magistrate Judge.

*1 Claimant, Michael D. Wallace ("Wallace"), pursuant to 42 U.S.C. § 405(g), requests judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying his applications for disability benefits under the Social Security Act. In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before a United States Magistrate Judge. Any appeal of this order will be directly to the Tenth Circuit Court of Appeals. Wallace appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that he was not disabled. For the reasons discussed below, the Court AFFIRMS the Commissioner's decision.

Background

Wallace was 42 years old at the time of the hearing before the ALJ on May 22, 2009. (R. 29). Wallace had an eighth grade education and had no vocational training. (R. 30). Wallace had worked temporary jobs and for an egg packing company. (R. 30-31). He was fired from his last permanent job for missing work. (R. 31). Wallace had a history of drug abuse, including methamphetamine, but testified that he had been clean for a couple of years. (R. 32-33). Wallace testified that he was bipolar and schizophrenic, and when he began to work steadily at a job, he would start hearing voices and seeing things. (R. 31, 33).

Wallace testified that during a manic phase, he heard voices, didn't sleep for days, got angry, talked to people that weren't really there, and believed he was God or Jesus. (R. 33-34). He also described that during a manic phase, he had done odd things like taking all the light bulbs out of the house and dumping spices down the sink because he thought the devil was trapped inside him. (R. 36). Wallace testified that he would also self-mutilate or cut himself when manic. (R. 39).

Wallace also described hearing voices when he was in a depressed phase, particularly at night when it is quieter. (R. 34). Wallace testified that when he was depressed, he slept a lot, withdrew, and had thoughts of suicide. (R. 38). Wallace had tried to commit suicide by cutting himself with a chainsaw and injecting himself with battery acid. (R. 38). Wallace indicated he had been hospitalized seven or eight times for suicidal thoughts. (R. 38-39).

Wallace testified that he also had paranoid thoughts on a frequent basis, particularly when he would go out in public. (R. 39-40). He described always looking over his shoulder and being unable to concentrate at work due to his paranoia and checking to see if anyone was behind him. (R. 40). Regardless of whether he was in a manic or depressed phase, he described having difficulty with concentration and had "a million things racing through [his] mind at all times." (R. 40-41). This caused him to have difficulty with comprehension while watching TV or reading. (R. 41).

Wallace had sought mental health treatment, including medication and therapy, from Grand Lake Mental Health and from his physician, Dr. Mease. (R. 34-35). Wallace testified that the medication helped some, but that it did not help with the voices. (R. 36). He also indicated that side effects of the medication included drowsiness, involuntary tongue and jaw movement, and headaches. (R. 37, 43-44). Wallace testified that he had headaches three to five times per month. Id . These headaches would last a day or two and Tylenol did not help. (R. 37-38).

*2 Wallace testified that on an average day, he spent most of his time in bed, and would get up at 5 p.m., eat, and go back to bed by 7 p.m. (R. 41-43). He testified that he would sleep anywhere from 14 to 18 hours a day. (R. 39, 43). He would try to mow the lawn or wash dishes, but could never finish. (R. 41, 44). Wallace testified that he left his home about once a week to visit family. (R. 44).

Wallace indicated that he did not really have any physical problems that would limit his ability to work. (R. 41). However, he did testify that he had a lung nodule that sometimes caused difficulty breathing and he had a "weak back from not working, " but opined it would probably improve with exercise. (R. 41-42). Wallace estimated that he could stand for about an hour and a half before needing to rest, walk for 30-40 minutes at a time and could sit for about an hour at a time. (R. 42). He also estimated that he could routinely lift around 50 pounds. (R. 44).

Wallace's wife, Karen Wallace, FN1 also testified at the hearing before the ALJ. (R. 45-47). She testified regarding his hallucinations, his suicidal behavior, and her multiple attempts to get him involuntarily committed to a hospital for inpatient psychiatric treatment. Id . She also testified that she had to urge him to do things like get out of bed, bathe, take his medication, and leave the house. Id.

FN1. The Court notes that at the hearing, Wallace's wife was identified as Karen Wallace, however, in all other parts of the record, his wife was identified as Carolyn Bemer. (R. 26-27, 45, 95, 97, 130, 147-54, 166, 176). There is no explanation for the discrepancy and Ms. Wallace testified that they had been married for three years and had been together for 19 years. (R. 45).

Wallace was hospitalized at Integris Grove General Hospital ("Integris") from May 16, 2005 to May 18, 2005 for nausea, vomiting, and abdominal pain. (R. 266-304). A chest CT revealed a right lung nodule that was essentially unchanged from the previous year, indicating it was most likely benign. (R. 293). Wallace was ultimately diagnosed with inflammatory bowel disease, urosepsis, FN2 and dehydration. (R. 266). Crohn's diseaseFN3 was suspected and an outpatient colonoscopy was recommended. Id . The colonoscopy and a polypectomy were subsequently performed on July 12, 2005 (R. 305-22). It was ultimately concluded that Wallace had a rectal polyp of uncertain behavior. (R. 308).

FN2. Urosepsis results from an "invasion from the urinary tract to the bloodstream by microorganisms or their products" and is "characterized by fever, chills, hypotension, and occasionally altered mental status." Dorland's Illustrated Medical Dictionary 1920 (29th ed.2000).

FN3. Chron's disease is a chronic inflammatory disease involving any part of the gastrointestinal tract that frequently leads to intestinal obstruction and fistula and abscess formation. Dorland's at 514.

Wallace presented to Integris on September 2, 2006 and was treated for a urinary tract infection and urethretis.FN4 (R. 323-32). On October 26, 2006, Wallace presented to Integris with complaints of weakness, dizziness, headaches and shaking. (R. 333-45). A chest x-ray again revealed the noncalcified nodule in his right lung, and it was noted that "[g]iven stability for this period of time, greater than 2 y[ears], this is certainly compatible with a benign nodule." (R. 333). Wallace was discharged with a prescription for Cipro, FN5 advised to stop smoking, and a CT scan of his chest was recommended. (R. 339-40).

FN4. Urethritis is "inflammation of the urethra." Dorland's at 1916.

FN5. Ciprofloxacin is an antibiotic. www.pdr.net.

Wallace was treated off-and-on at Grand Lake Mental Health Center ("GLMHC") from approximately March 1999 through 2008. (R. 196-247). The record indicates Wallace received inpatient services at the GLMHC Stabilization Center from March 11, 1999 through March 15, 1999 and from February 2, 2003 through February 5, 2003 for psychoses and polysubstance dependence. (R. 205, 238). The record also indicates Wallace received outpatient services at GLMHC from April 1999 through May 2001 and from February 2003 through December 2006. Id . However, with the exception of one medication management appointment, medical records for the inpatient treatment and for the outpatient treatment from these dates were not provided. Id.

*3 The first GLMHC record available was dated November 1, 2006, and Shirley Chesnut, D.O. noted that Wallace was "stable" and was "doing well on current medications. No complaint of voices or visions. No complaint of depression or suicidal/homicidal ideation." (R. 204). Wallace's medications were listed as Risperdal, FN6 Zoloft, FN7 and Clonidine.FN8 Id.

FN6. Risperdal is used for the treatment of schizophrenia and bipolar disorder. www.pdr.net.

FN7. Zoloft is an anti-depressant. www.pdr.net.

FN8. Clonidine is used to treat hypertension and may also be used to treat attention deficit hyperactivity disorder and as an adjunctive therapy to stimulant medications. www.pdr.net.

On January 10, 2007, Wallace was seen again at Integris for complaints of coughing, vomiting, congestion, and urinating blood. (R. 346-54). Wallace was diagnosed with bronchitis and a urinary tract infection and prescribed an antibiotic and inhaler. (R. 349-350, 354).

On January 11, 2007, Wallace was seen at GLMHC by Theresa Page-Bohannan, M.S., LPC for an assessment and to establish a treatment plan. (R. 220-21). Wallace presented with a "clearly nervous" affect. (R. 221). Wallace's identified problems were excessive mood swings with anger and depression, psychoses, and hallucinations. (R. 220-21). Wallace indicated he was "glad to be back." Id.

On February 28, 2007, Wallace presented to Integris and was treated for another urinary tract infection. (R. 355-72). Later that same day, Wallace had a medication management appointment with Dr. Chesnut at GLMHC, who noted Wallace had been taken his medications as prescribed and that they were working well. (R. 203). Wallace reported no complaints of voices, visions, depression, or suicidal/homicidal ideation. Id . At a subsequent appointment with Dr. Chesnut on May 19, 2007, she again noted Wallace was "doing well" and that he had no complaints of voices, visions, depression, or suicidal/homicidal ideation. (R. 202).

On June 20, 2007, Wallace presented to Integris with complaints of vomiting, diarrhea, and abdominal cramps. (R. 378-81). He was prescribed LevsinFN9 and PhenerganFN10 and released. (R. 379, 381). Two months later, on August 14, 2007, Wallace presented to Integris again for abdominal pain, vomiting, diarrhea, and pain with urination. (R. 382-400). He was discharged with another prescription for Phenergan. (R. 390, 392).

FN9. Levsin is used to treat ulcers, irritable bowel syndrome, and neurogenic bladder and bowel disturbances. www.pdr.net.

FN10. Phenergan may be used to prevent and control nausea and vomiting. www.pdr.net.

On August 22, 2007, Wallace was evaluated at GLMHC by Patient Service Representative, Rikki Lancaster, B.S. (R. 205-09, 215). At that time, Wallace reported problems with sleeping, depression, anxiety, and psychosis. (R. 207). He indicated that he could "sometimes" work. Id . Wallace also reported that he had been out of his medications, which caused him to suffer from delusions and hallucinations. (R. 207, 215). Wallace reported his paranoia and mistrust of others interfered with his ability to make and keep friends and caused him to isolate and withdraw. (R. 207). Lancaster noted that Wallace's "mood was bizarre with blunted affect." (R. 215). Lancaster noted his diagnosis of bipolar disorder, most recent episode hypomanic, and assessed his global assessment of functioning ("GAF")FN11 score at 43, with the highest level in the past year at 51. (R. 205). It was also noted that Wallace had a long history of mood swings, uncontrolled anger with periodic assaults, and a history of polysubstance abuse. Id . Lancaster also noted that Wallace's history of "compliance with treatment ha[d] been poor" and that his prognosis was "guarded... due to his sporadic attendance in service and inconsistent compliance with medications." FN12 (R. 207).

FN11. The GAF score represents Axis V of a Multiaxial Assessment system. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32-36 (Text Revision 4th ed.2000) (hereinafter "DSM IV"). A GAF score is a subjective determination which represents the "clinician's judgment of the individual's overall level of functioning." Id. at 32. The GAF scale is from 1-100. A GAF score of 41-50 reflects "serious symptoms... or any serious impairment in social, occupational, or school functioning." Id.

FN12. In 2007, Wallace did not show up for scheduled appointments on May 14, June 18, July 13, July 20, August 10, August 29, and October 17. (R. 212, 214, 216-19, 227, 229, 233).

*4 On September 19, 2007, Wallace had a medication management appointment with Dr. Chesnut. (R. 200). She noted he had no complaints of voices, visions, depression, or homicidal or suicidal ideations. Id . Wallace also attended a group session on that date regarding relaxation techniques. (R. 234). At that time, his mood was listed as withdrawn with a flat affect. Id . On November 28, 2007, Wallace attended another group session regarding how to practice coping skills to reduce symptoms of mental illness. (R. 232).

On February 8, 2008, Wallace had a chest CT performed to evaluate his right lung nodule. (R. 401). It was noted that the "lesion [was] completely stable since... 5/16/05, " indicating that it was "a benign process, possibly a granuloma, or small hamartoma." Id . There was also an "incidental note" of multiple gallstones." Id.

Lancaster completed another assessment of Wallace on February 13, 2008. (R. 238-42, 247). She noted that Wallace's mood was agitated with a flat affect. (R. 247). Wallace reported that his medications were no longer working as well. Id . Wallace also reported problems with sleep disturbance, anger, nervousness, mood swings, aggression, delusions, and hallucinations. (R. 240-41). Suicidal ideation was also noted. (R. 240). Wallace reported he was unemployed, but could "sometimes" work, and was waiting on disability approval. Id . His diagnosis was still listed as bipolar disorder, most recent episode hypomanic, and his GAF score was listed as 43. (R. 238). Lancaster continued to note that his prognosis was "guarded" and that his compliance with treatment remained poor.FN13 (R. 240). Wallace also attended a group session on this date concerning negative thinking. (R. 231).

FN13. In 2008, Wallace did not show up for scheduled appointments on February 27 and March 12. (R. 225, 246)

Wallace also had an appointment on February 13, 2008 with Dr. Chesnut for medication management. (R. 226). Wallace reported increased depression and anxiety, but contrary to what Lancaster had noted, Wallace did not report voices or visions to Dr. Chesnut. Id . Dr. Chesnut increased the dosage of Wallace's medication. Id.

Wallace presented to Integris on February 28, 2008 with complaints of acute abdominal pain. (R. 402-16). A CT of the abdomen and a CT of the pelvis revealed recurrent acute sigmoid diverticulitis FN14 and incidental cholelithiasis.FN15 Wallace was discharged with directions to avoid seeds and nuts and with prescriptions of Phenergan, Cipro, and Vicodin for pain. (R. 408-09).

FN14. Sigmoid diverticulitis is an inflamation of a diverticulum, which is a pouch or sac in the colon. Dorland's at 537, 1638.

FN15. Cholelithiasis is the presence or formation of gallstones. Dorland's at 341.

On September 5, 2008, Wallace presented to Darrell Mease, M.D., for prescription refills and as a follow-up of his bipolar disorder. (R. 435-37). Wallace reported a mild degree of mania and a six-week episode of depression. (R. 435). Dr. Mease noted Wallace had frequent, almost daily, symptoms of "insomnia, decreased ability to concentrate, guilt, sadness, feelings of worthlessness and tendency towards indecisiveness." Id . Other reported symptoms were apprehension and a feeling of impending doom. Id.

*5 On September 28, 2008, Wallace reported to Dr. Mease that three days earlier, he had fainted and was unconscious for approximately two minutes. (R. 429-33). Wallace reported that this occurred suddenly and that he experience blurred vision and nausea prior to the occurrence. (R. 430). Dr. Mease noted that Wallace appeared tired and had a disheveled appearance. (R. 431). He also noted that Wallace appeared anxious, agitated, and paranoid, displayed psychomotor agitation and had pressured speech. Id.

On March 18, 2009, Wallace underwent a laparoscopic cholecystectomy FN16 for his cholelithiasis and chronic cholecystitis.FN17 (R. 422-25). On April 7, 2009, it was noted that his recovery was going well. (R. 421).

FN16. A cholecystectomy is the surgical removal of the gallbladder. Dorland's at 341.

FN17. Chronic cholecystitis is "inflammation of the gallbladder with relatively mild symptoms persisting over a long period." Dorland's at 340.

Nine days after the administrative hearing, Wallace was admitted to Integris for observation from May 31, 2009 to June 2, 2009 after experiencing radiating chest pain. (R. 444-50). Tests did not reveal any significant coronary artery disease and he had normal left heart pressures and normal left ventricular systolic function. (R. 447, 449-50). However, he did have "an anomalous takeoff of the nondominant right coronary artery from what appear[ed] to be the superior portion of the left main coronary artery." (R. 447, 450). He also had elevated liver enzymes and tested positive for Hepatitis C. FN18 (R. 447). Wallace was discharged with instructions to increase physical activity, maintain a cardiac diet, and cease smoking. Id.

FN18. Hepatitis C is a viral disease, that may be acquired via transfusion of blood products or via drug abuse. Dorland's at 808.

On July 8, 2009, Wallace was admitted to Integris for exacerbation of his diverticulitis. (R. 703-06). Wallace was discharged on July 10, 2009 after his pain was controlled and he was able to tolerate a regular diet. Id.

After the ALJ rendered his decision, FN19 Wallace was admitted to Integris from April 13, 2010 to April 16, 2010 for a bowel obstruction. (R. 452-91, 547-48). Another chest x-ray revealed that his right lung nodule remained unchanged. (R. 490). Upon discharge, it was noted that although he had a history of bipolar disorder, Wallace was "doing quite well." (R. 453).

FN19. Although these records are outside the relevant time frame and were not available to the ALJ, this Court has included the new evidence in its consideration of whether substantial evidence supports the ALJ's decision. "[W]e must consider the entire record, including [the newly submitted] treatment records, in conducting our review for substantial evidence on the issues presented." Martinez v. Barnhart , 444 F.3d 1201, 1208 (10th Cir.2006).

On April 25, 2010, Wallace was readmitted to Integris for a recurrent bowel obstruction and discharged on May 3, 2010. (R. 494-602). During his stay, it was revealed that there were several loops of ileum FN20 adhered to a perforation of his sigmoid colon, which ultimately required an ileostomy, FN21 performed by Douglas Ohlstrom, M.D. (R. 495, 591-93). Wallace was discharged with medication and home health nursing to assist with dressing changes and ileostomy care. (R. 495, 723).

FN20. Ileum is the distal portion of the small intestine. Dorland's at 875.

FN21. An ileostomy is the surgical creation of an opening into the ileum and abdominal wall. Dorland's at 875, 1703.

On May 16, 2010, Wallace presented to Integris with complaints of abdominal pain and blood in his ileostomy. (R. 606-16). Dr. Ohlstrom was consulted and indicated there was nothing to worry about. (R. 616). Wallace presented to Integris again on three separate dates in July and August 2010 with complaints of abdominal pain and diarrhea. (R. 617-42). During these visits, there was no evidence of bowel obstruction and Wallace was discharged with diagnoses of diverticulitis and colitis and instructed to rest, continue taking his medication, and follow-up with his doctor as needed. Id.

*6 On July 21, 2010, Dr. Ohlstrom wrote a letter stating that as a result of Wallace's extensive surgery for bowel obstruction and his ileostomy, he anticipated Wallace would "need multiple surgeries in the future before his complete recovery is to be obtained." (R. 604).

On September 24, 2010, Wallace underwent a colonoscopy at Integris. (R. 649-67). Results revealed: changes consistent with a defunctionalized colon; however, in the ascending colon and descending colon there was marked erythema, [FN22] although no actual ulcerations... There were multiple diverticula and some narrowing of the sigmoid colon noted.

FN22. Erythema is redness produced by congestion of the capillaries. Dorland's at 617.

(R. 651). Wallace subsequently presented to Integris on October 1, 2010 with complaints of abdominal pain since the colonoscopy. (R. 668-77). Wallace was instructed to consume a clear liquid diet, use a heating pad, and continue his medication. (R. 672). On October 10, 2010, Wallace was seen at Tahlequah City Hospital for complaints of abdominal pain. (R. 728-30). Tests revealed sigmoid colitis or diverticulitis, but no obstruction. (R. 729-30).

Wallace did not have any agency consultative examinations. On November 11, 2007, non-examining agency consultant Sally Varghese, M.D., completed a Psychiatric Review Technique form and found insufficient evidence of a medically determinable impairment. (R. 182-94). Dr. Varghese noted that she was unable to assess the severity of Wallace's impairments because his medical source had not responded to a request for information and because Wallace had not shown up for two scheduled appointments for an agency mental status exam. (R. 194).

Non-examining agency consultant Burnard Pearce, Ph.D., completed a Psychiatric Review Technique form and Mental Residual Functional Capacity Assessment on June 10, 2008. (R. 248-65). Dr. Pearce marked that Wallace had an affective disorder, evidenced by both depressive and manic symptoms. (R. 248, 251). In the "Consultant's Notes" section, Dr. Pearce noted that Wallace had not shown up for another scheduled mental status exam and had not responded to a follow-up phone call or letter. (R. 260). Dr. Pearce briefly reviewed records from GLMHC, describing delusions, hallucinations, paranoia, and isolation. Id . Dr. Pearce also noted that Wallace had a history of substance abuse as well as non-compliance with treatment and medication. Id.

On the Mental Residual Functional Capacity Assessment form, Dr. Pearce found that Wallace was markedly limited in his ability to understand, remember, and carry out detailed instructions. (R. 262). Dr. Pearce also found that Wallace was markedly limited in his ability to interact appropriately with the general public. (R. 263). No other limitations were found. (R. 262-63). In summary, Dr. Pearce opined that Wallace could "perform simple tasks with routine supervision, " "relate to supervisors and peers on a superficial work basis, " "cannot relate to the general public, " and "can adapt to a work situation." (R. 264).

Procedural History

*7 On June 21, 2007, Wallace filed applications for disability insurance benefits and for supplemental security income under Titles II and XVI, 42 U.S.C. §§ 401 et seq. (R. 11, 95-102). Wallace alleged the onset of his disability began June 20, 2007. (R. 95, 100). The applications were denied initially and on reconsideration. (R. 54-57). A hearing before ALJ Charles Headrick was held May 22, 2009 in Tulsa, Oklahoma. (R. 25-53). By decision dated July 16, 2009, the ALJ found that Wallace was not disabled. (R. 11-18). On March 17, 2011, the Appeals Council denied review of the ALJ's findings. (R. 1-5). Thus, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.

Social Security Law and Standard of Review

Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act only if his "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. § 404.1520.FN23 See also Williams v. Bowen , 844 F.2d 748, 750 (10th Cir.1988) (detailing steps). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Id.

FN23. Step One requires the claimant to establish that he is not engaged in substantial gainful activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that he has a medically severe impairment or combination of impairments that significantly limit his ability to do basic work activities. See 20 C.F.R. § 404.1520©. If the claimant is engaged in substantial gainful activity (Step One) or if the claimant's impairment is not medically severe (Step Two), disability benefits are denied. At Step Three, the claimant's impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 ("Listings"). A claimant suffering from a listed impairment or impairments "medically equivalent" to a listed impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four, where the claimant must establish that he does not retain the residual functional capacity ("RFC") to perform his past relevant work. If the claimant's Step Four burden is met, the burden shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the national economy which the claimant, taking into account his age, education, work experience, and RFC, can perform. See Dikeman v. Halter , 245 F.3d 1182, 1184 (10th Cir.2001). Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.

Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir.2004) (quotation omitted).

Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id . The court's review is based on the record taken as a whole, and the court will "meticulously examine the record in order to determine if the evidence supporting the agency's decision is substantial, taking into account whatever in the record fairly detracts from its weight.'" Id . (quoting Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir.1994)). The court "may neither reweigh the evidence nor substitute" its discretion for that of the Commissioner. Hamlin , 365 F.3d at 1214 (quotation omitted).

Decision of the Administrative Law Judge

The ALJ found that Wallace met the insured status requirements through September 30, 2008. (R. 13). At Step One, the ALJ found that Wallace had not engaged in any substantial gainful activity since his alleged onset date of June 20, 2007. Id . At Step Two, the ALJ found that Wallace had a severe impairment of bipolar disorder. Id . At Step Three, the ALJ found that Wallace's impairments, or combination of impairments, did not meet a Listing. (R. 13-14).

*8 After reviewing the record, the ALJ determined Wallace had the RFC to perform a range of medium work, with the exception of his ability to "perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, cannot relate to the general public, and can adapt to a work situation." (R. 14). At Step Four, the ALJ found that Wallace was capable of performing his past relevant work as an egg packer. (R. 17). In the alternative, the ALJ found that Wallace was not disabled at Step Five and identified other jobs in the national economy that Wallace could perform. (R. 17-18). Therefore, the ALJ found that Wallace was not disabled from June 21, 2007 through the date of his decision. (R. 18).

Review

Wallace asserts that the ALJ erred by failing to perform a proper determination at Steps Four and Five, and failing to perform a proper credibility determination. Regarding the issues raised by Wallace, the undersigned finds that the ALJ's decision is supported by substantial evidence and complies with legal requirements. Therefore, the ALJ's decision is affirmed.

Steps Four and Five

Wallace's argument regarding Steps Four and Five is his objection to the hypothetical given to the vocational expert ("VE"). Instead of actually stating out loud what physical and mental limitations he wanted to include in the hypothetical, the ALJ merely referred to the Mental Residual Functional Capacity Assessment of Dr. Pearce and asked the VE to assume that Wallace had the RFC "to perform a full range of medium work, that he ha[d] functional or mental limitations as set out in [Dr. Pearce's assessment]." (R. 49, 262-64). In general, this Court disapproves of this method of propounding a hypothetical to the VE:

A complete question paired with a complete answer in the transcript is highly desirable... [The shortcut of using forms] too often leaves the reviewing court with difficulty in determining if the people sitting in the hearing room all were asking questions, giving testimony, and listening to testimony regarding the same hypothetical RFC.

Sitsler v. Astrue , 410 Fed.Appx. 112, 120 n. 4 (10th Cir.2011) (unpublished). Nevertheless, the use of forms as a way of propounding the hypothetical to the VE has not been ruled by the Tenth Circuit to be a per se fatal error by an ALJ, and this Court declines to proclaim such a rule. Moreover, Wallace does not give examples of any prejudice he suffered as a result of the ALJ's questioning of the VE.

As described earlier in this Opinion and Order, Dr. Pearce found that Wallace could "perform simple tasks with routine supervision, " could "relate to supervisors and peers on a superficial work basis, " could not "relate to the general public, " and could "adapt to a work situation." (R. 264). The hypothetical, as it encompassed Dr. Pearce's assessment, is entirely consistent with the ALJ's ultimate RFC determination that Wallace had the RFC to perform medium work, with the exception of his ability to "perform simple tasks with routine supervision, relate to supervisors and peers on a superficial work basis, cannot relate to the general public, and can adapt to a work situation." (R. 14).

*9 Wallace argues that the ALJ failed to give specific exertional abilities in his hypothetical to the VE. This argument has no merit, particularly where there is no evidence of any exertional limitations and Wallace specifically claimed he had no physical impairments that prevented him from working. (R. 41-43). The exertional requirements of medium work are defined at 20 C.F.R. §§ 404.1567(c) and 416.967(c) and the Tenth Circuit has affirmed cases where the ALJ used the defined exertional levels, rather than listing each component of the defined level, as part of the hypothetical asked of the VE. Qualls v. Astrue, 428 Fed.Appx. 841, 850-51 (10th Cir.2011) (unpublished); FN24 Rutledge v. Apfel , 230 F.3d 1172, 1175 (10th Cir.2000). The Court finds that it would be an unwarranted formality to require the ALJ to state all of the components that together are defined as medium work. See Fischer-Ross v. Barnhart , 431 F.3d 729 (10th Cir.2005); Westbrook v. Massanari , 26 Fed.Appx. 897, 903 (10th Cir.2002) (unpublished) (requirement of establishing demands of previous work at Step Four was not intended "to needlessly constrain ALJs by setting up numerous procedural hurdles that block the ultimate goal of determining disability"); Wall v. Astrue , 561 F.3d 1048, 1068-69 (10th Cir.2009) (remand when ALJ completed extensive analysis of medical evidence would result in "needlessly prolonging" proceedings). There was no error in the way the ALJ described the exertional abilities in the hypothetical to the VE.

FN24. In Qualls, the VE did specifically testify that she was familiar with the exertional requirements of work activity. 428 Fed.Appx. at 850. That would be the better method, however, in the present case, the VE did at least show familiarity with the exertional requirements in her testimony in describing Wallace's past relevant work. (R. 49). See id. at 850 n. 9.

Credibility

Credibility determinations by the trier of fact are given great deference. Hamilton v. Secy. of Health & Human Servs. , 961 F.2d 1495, 1499 (10th Cir.1992).

The ALJ enjoys an institutional advantage in making [credibility determinations]. Not only does an ALJ see far more social security cases than do appellate judges, [the ALJ] is uniquely able to observe the demeanor and gauge the physical abilities of the claimant in a direct and unmediated fashion.

White v. Barnhart , 287 F.3d 903, 910 (10th Cir.2002). In evaluating credibility, an ALJ must give specific reasons that are closely linked to substantial evidence. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.1995); Social Security Ruling 96-7p, 1996 WL 374186. Some of the factors the ALJ may consider in assessing the credibility of a claimant's complaints include "the levels of medication and their effectiveness, the extensiveness of the attempts... to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, ... and the consistency or compatibility of nonmedical testimony with objective medical evidence." Kepler , 68 F.3d at 391 (quotation and citation omitted).

In his decision, the ALJ found that Wallace's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." FN25 (R. 17). While the ALJ's credibility assessment was minimal, the Court finds it adequate. Cobb v. Astrue , 364 Fed.Appx. 445, 450 (10th Cir.2010) (unpublished) (while ALJ's credibility assessment was summary, taking the decision as a whole, the ALJ's findings regarding the claimant's testimony were "clear enough" without violating rule against post hoc justification). Although the ALJ could have been more detailed in his credibility analysis, he did set forth sufficient and specific reasons for his finding that Wallace lacked credibility. In making his credibility determination, the ALJ summarized Wallace's testimony and the testimony of his wife, discussed the medical evidence, and gave specific reasons for finding Wallace not credible. (R. 15-17).

FN25. Wallace faulted this language as meaningless boilerplate, but this sentence was merely a summary of the ALJ's analysis and was not harmful. See Kruse v. Astrue , 436 Fed.Appx. 879, 887 (10th Cir.2011) (unpublished) ("boilerplate language is insufficient to support a credibility determination only in the absence of a more thorough analysis") (quotation omitted).

*10 The ALJ discussed Wallace's medical records, including the fact that he missed numerous appointments, and was evaluated by his treating psychiatrist as "stable" at the appointments he did attend. (R. 16). The ALJ's reliance upon the inconsistency between this medical evidence and Wallace's complaints is a specific reason for finding Wallace less than credible. (R. 17). See 20 C.F.R. § 404.1529(c)(4) ("we will evaluate your statements in relation to the objective medical evidence"). A finding that the objective medical evidence is inconsistent with the claimant's allegations of disabling pain is a legitimate factor for an ALJ to consider in making a credibility assessment. Kepler , 68 F.3d at 391 ("consistency or compatibility of nonmedical testimony with objective medical evidence" is one factor that an ALJ should consider in assessing credibility). The ALJ did not rely solely on a lack of corroborating objective medical evidence, but relied on other factors as well. See Kruse , 436 Fed.Appx. at 886.

In addition to the legitimate reason of citing provisions of objective medical evidence that contrasted with Wallace's claims of disabling mental symptoms, the ALJ specifically examined the credibility factors set forth by SSR 96-7p, including activities of daily living, factors that precipitated and aggravated symptoms, medication taken to alleviate symptoms, and treatment obtained for relief, as well as his history of substance abuse. (R. 16-17).

Wallace lists several pieces of evidence that the ALJ "ignored." A claimant made a similar argument in a Tenth Circuit case, listing "certain pieces of favorable evidence." Stokes v. Astrue , 274 Fed.Appx. 675, 685-86 (10th Cir.2008) (unpublished). The Tenth Circuit said that the only question it needed to consider was whether the ALJ's adverse credibility assessment "was closely and affirmatively linked to evidence that a reasonable mind might accept as adequate to support that conclusion." Id. at 686. The Tenth Circuit found no reason to overturn the ALJ's credibility determination. Id . See also Korum v. Astrue , 352 Fed.Appx. 250, 253-54 (10th Cir.2009) (unpublished) (ALJ's opinion was thorough, and evidence not mentioned by the ALJ was not of such quality as to require discussion). This Court also finds that the ALJ's credibility assessment was closely and affirmatively linked to evidence that supported the conclusion that Wallace was not fully credible.

Wallace also criticizes the ALJ's credibility determination of his wife's testimony. The ALJ found that her "testimony [was] diminished substantially because of the spousal relationship and a desire to support the claimant. The claimant's lack of support for his mental status allegations also affects his wife's credibility." (R. 17). This credibility determination is also entitled to deference when supported by substantial evidence. See Adams v. Chater , 93 F.3d 712, 715 (10th Cir.1996). First, it is worth noting that the Tenth Circuit does not require the ALJ to make a specific credibility determination of every witness, including a claimant's spouse. Id . ("We decline claimant's invitation to adopt a rule requiring an ALJ to make specific written findings of each witness's credibility, particularly where the written decision reflects that the ALJ considered the testimony."). Nonetheless, the undersigned finds that substantial evidence supports the ALJ's credibility determination regarding Ms. Wallace's testimony. It was proper for the ALJ to consider the spousal relationship and the lack of corroborating evidence as factors in assessing her credibility. Kepler , 68 F.3d at 391 (Relevant factors include "the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.") (quotation omitted).

*11 Wallace's multiple arguments regarding the ALJ's credibility assessment constitute "an invitation to this court to engage in an impermissible reweighing of the evidence and to substitute our judgment for that of the Commissioner, " and the undersigned declines that invitation. Hackett v. Barnhart , 395 F.3d 1168, 1173 (10th Cir.2005); see also Miller ex rel. Thompson v. Barnhart , 205 Fed.Appx. 677, 681 (10th Cir.2006) (unpublished) (claimant disputed ALJ's view of evidence and relied on other evidence, but court declined to reweigh evidence). All of Wallace's arguments are essentially that Wallace would like for this Court to give more weight to the evidence that is in his favor and less weight to the evidence that disfavors his claim of disability.

The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.

Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir.2007) (citations, quotations, and brackets omitted). The ALJ's credibility determination was supported by specific reasons linked to substantial evidence, and the undersigned therefore finds that it should be affirmed. Mann v. Astrue , 284 Fed.Appx. 567, 571 (10th Cir.2008) (unpublished) (finding credibility determination adequate when ALJ discussed three points).

Conclusion

The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. The decision is AFFIRMED.

*840 Sylvester Davis, # 96327, Crowley County Correctional Facility, Olney Springs, CO, pro se.

Edward T. Farry, Farry and Rector, L.L.P., Colorado Springs, CO, Josh Adam Marks, Melanie Bailey Lewis, Hall & Evans, Denver, CO, for Defendants-Appellees. Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

O'BRIEN, Circuit Judge.

**1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument. Sylvester Davis, a state prisoner, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint FN1 for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we agree Davis fails to state a claim and DISMISS his appeal as frivolous.

FN1. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. The operative pleading is Davis'"Final Amended Prisoner's Civil Rights Complaint." (R., Docket Entry 17.)

Davis was incarcerated at the Colorado Department of Corrections' Arkansas Valley Correctional Facility (AVCF) and later at its Crowley County Correctional Facility (Crowley). While incarcerated at AVCF, he ran into disciplinary problems. He alleges as follows. On August 16, 2000, he was typing a paper in the General Library. Officer J. Halpin requested to see the paper. Davis did not comply. Instead, he removed the paper from the typewriter and placed it in a pocket folder with other papers. Halpin confiscated the pocket folder and also a manila envelope.FN2 In the pocket folder, he found the sheet of paper on which Davis had been typing. It was legal work. The law librarian examined the pocket folder and manila envelope and found a handwritten sheet of paper with another inmate's name on it. At a hearing conducted on September 7, 2000, Davis was charged with disciplinary violations for disobeying a lawful order (found guilty) and possession of unauthorized legal documents (found not guilty).FN3 The *841 following day, Davis sought return of the confiscated legal materials on the basis he was found not guilty of possession of unauthorized legal documents. On September 13, Halpin informed Davis the seized papers were in the evidence locker in the Receiving/Discharge Department and he could contact that department concerning their retrieval. On October 5, in response to a Step I grievance Davis filed, Officer Steve Hartley informed him legal materials were not permitted in the General Library, and as a result his confiscated paperwork was considered contraband and would be treated as such. He further warned Davis that he had ten days to "mail the items out or have them destroyed." (R. Docket Entry 75, Ex. B.) On October 30, Officer Garcia, responding to a Step II grievance Davis filed, communicated essentially the same information: Davis' confiscated papers were subject to disposition as contraband because legal work was to be done in the Law Library and not in the General Library. Furthermore, the papers contained material concerning another inmate's case, which regulation prohibited. Davis did not elect to mail the items out of the facility or authorize their destruction. He claims Officers Hartley and Garcia authorized their destruction on October 30.FN4 In response to a Step III grievance, again seeking return of his materials, Davis was informed on December 29 that he was required to pursue his claim through an appeal of the disciplinary action that led to the confiscation of his materials, not through the grievance process.

FN2. Davis claims the confiscated papers were legal materials in aid of seeking post-conviction relief from his criminal conviction. Although the record is unclear as to the particulars of the materials, Davis complains specifically about two items: (1) a statement from one Tina King, and (2) an IOU from him to his co-defendant.

FN3. Davis was found not guilty of the possession charge because the paper with the other inmate's name on it was legal notes rather than legal documentation. Davis was warned not to possess paperwork with another inmate's name on it.

FN4. The record is unclear whether the papers were intentionally destroyed, negligently destroyed or merely misplaced. We will assume, without finding, that the papers were intentionally destroyed as contraband pursuant to prison regulation.

**2 In February 2000, Davis was transferred to Crowley. According to his complaint, the medical staff at Crowley discontinued pain medication previously prescribed for him free of charge at AVCF.FN5 He claims he was required to purchase the medication over-the-counter at the Crowley canteen at a cost he could not afford. He also complains that his $3.00 co-pay for medical visits should cover the cost of his pain medication.

FN5. The pain medication prescribed by AVCF was for treatment of an allergy-related sinus condition. The medical staff at Crowley prescribed Chlor-Trimeton and directed Davis to obtain pain medication from the canteen.

In his complaint, Davis alleges Hartley and Garcia violated his Fourteenth Amendment right to due process by confiscating and destroying his legal materials and by transferring him to Crowley in retaliation for challenging the confiscation. He also claims they violated the First Amendment by interfering with his right of access to the courts.FN6 Additionally he alleges Steve Hargett, Warden of Crowley, *842 violated his Eighth Amendment right to reasonable medical care. He seeks $100, 000.00 in damages.

FN6. Although Davis variously characterizes his claims against Hartley and Garcia as violations of the Fifth Amendment (destruction of legal property, deprivation of access to court, retaliatory transfer), Fourteenth Amendment (confiscation and destruction of legal materials), and First and Sixth Amendments (deprivation of access to court), we construe his deprivation of access to court claim to be an alleged violation of the First and Fourteenth Amendments, and all of his remaining allegations to be subsumed in his Fourteenth Amendment claim. See Hudson v. Palmer , 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (right of access to courts grounded in First Amendment); Logan v. Zimmerman Brush Co. , 455 U.S. 422, 429-30, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (due process clause protects right of access to courts).

We review de novo the district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir.1999).

"[A]ll well-pleaded factual allegations in the... complaint are accepted as true and viewed in the light most favorable to the nonmoving party.FN7 A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

FN7. Exhibits attached to a pleading are considered a part thereof. Fed.R.Civ.P. 10(c).

Id. (quotations and citation omitted). Although we construe pro se pleadings liberally, Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir.2003), "[we] will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir.1997). Nor are we "bound by conclusory allegations, unwarranted inferences, or legal conclusions." Hackford v. Babbitt , 14 F.3d 1457, 1465 (10th Cir.1994).

As to Davis' claims against Hartley and Garcia, Davis has failed altogether to allege either of them was involved in the confiscation of his legal materials. Therefore, the confiscation portion of his claim fails. As to the destruction portion of his claim, he only alleges in conclusory fashion that either Hartley or Garcia was involved in the destruction of his materials. This is insufficient. The mere fact each may have signed a grievance response indicating the confiscated materials were subject to disposal as contraband hardly suffices to establish that either participated in or authorized the destruction of the materials. For this reason, the destruction portion of his claim fails. Even if Davis adequately alleged that Hartley and Garcia intentionally destroyed or authorized the destruction of his legal materials pursuant to prison regulation (see n. 4), an act which concededly requires a pre-deprivation hearing in order to comply with due process, Gillihan v. Shillinger , 872 F.2d 935, 939-40 (10th Cir.1989), we conclude the pre-deprivation due process accorded to Davis was sufficient. He was informed through the grievance process he could preserve the confiscated materials by sending them out of the facility; otherwise, they would be destroyed. In failing to arrange to send the materials out of the facility, he acceded to their destruction. Furthermore, he was informed he must appeal the underlying disciplinary action in order to contest the confiscation. The record is devoid of any evidence he pursued an appeal.FN8 Under these circumstances, due process is satisfied.

FN8. See Logan , 455 U.S. at 434 n. 7, 102 S.Ct. 1148 (due process not violated where claimant does not avail himself of hearing procedure).

**3 Davis' claim that Hartley and Garcia retaliated against him by transferring him to Crowley is, like the confiscation claim, devoid of specific factual allegations connecting either of them to his transfer. Consequently, Davis' retaliation claim fails as well. Finally, while Davis enjoys the fundamental right of access to the courts, Lewis v. Casey , 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), to state a claim for deprivation of this right he must demonstrate an actual injury that "hindered his efforts to pursue a legal claim." Id. at 351. He failed to *843 demonstrate to the district court how the destruction of his legal materials hindered him in the petitioning for post-conviction relief.

Turning to Davis' claim against Hargett, while it is true that "[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment[, ]" Farmer v. Brennan , 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation omitted), it is also true that "a supervisor is not liable under § 1983 for the actions of a subordinate unless an affirmative link exists between the constitutional deprivation and either the supervisor's personal participation or his failure to supervise...." Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir.1996) (quotation omitted). Davis has failed to demonstrate this link. Copying Hargett with correspondence outlining his complaints about medical care, without more, does not sufficiently implicate the warden under § 1983.

We conclude Davis' appeal is frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and DISMISS it.FN9 We also deny leave to appeal in forma pauperis and remind Davis of his obligation to pay in full the filing and docketing fees.

FN9. Dismissal of Davis' appeal as frivolous counts as a strike against him. 28 U.S.C. § 1915(g). Dismissal by the district court for failure to state a claim also counts as a strike. Id . Therefore, he accumulates two strikes as a result of this litigation. See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir.1999) ("If we dismiss as frivolous the appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.").

Michael Doyle, Sterling, CO, pro se.

Jess Alexander Dance, Robert Charles Huss, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE

MILLER, Judge.

*1 This matter is before me on a recommendation of Magistrate Judge Kathleen M. Tafoya, issued August 21, 2008 (Docket No. 80), recommending that Defendants' motions to dismiss (Docket No. 24) be granted and Plaintiff's motions for preliminary injunctions (Docket Nos. 31, 61, 70, 75) be denied. Plaintiff filed a timely objection to the recommendation and, therefore, is entitled to de novo review of the portions of the recommendation to which objection was made. 28 U.S.C. § 636(b); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988). I must construe Plaintiff's pleadings liberally and hold him to a "less stringent standard" because he is proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) ("A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972))). For the reasons set forth below, I accept Magistrate Judge Tafoya's recommendation as modified.

Background

Plaintiff has been incarcerated at the Colorado Territorial Correctional Facility ("CTCF") at all times relevant to this action. This action was filed pursuant to 42 U.S.C. § 1983 by Plaintiff and alleges three claims for relief. Claim One alleges a violation of Plaintiff's right to due process because Plaintiff was placed on restricted privilege ("RP") status for fourteen and a half months without being provided a disciplinary hearing. Claim Two alleges (1) one of Plaintiff's disciplinary charges for advocating or creating a facility disturbance was based on false reports submitted by Sergeant Cella ("Cella") and Correctional Officer Reyes ("Reyes"); (2) Cella and Reyes destroyed Plaintiff's property in his cell including his headphones and his prescription glasses; (3) Plaintiff was denied the ability to show a surveillance tape or call Cella or Reyes during his disciplinary hearing; (4) Plaintiff was placed in segregation pending the disciplinary hearing; and (5) Cella made additional false reports upon which another disciplinary charge was filed. Claim Three alleges that he has been denied access to legal materials because the legal information he ordered was returned to sender for failure to include the sending attorney's name and registration number on the exterior of the package and the letters he has sent to various law firms were "refused." Throughout his complaint, Plaintiff cites to numerous Colorado Code of Penal Discipline ("CPOD") cases although he does not necessarily specifically link his allegations to the results of those cases.

Pursuant to Colo. R. Civ. P. 106(a)(4), which provides relief in Colorado courts "[w]here any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion", Plaintiff filed a claim in August 2006 in the Fremont County District Court ("District Court") (the "state court action"). This action named all defendants that are named in this suit except for Warden Abbott and was admittedly based on many of the same allegations that form the basis for Plaintiff's section 1983 claims in this case. The state court action did, however, allege additional bases for relief including attacks on his original conviction, First Amendment challenges, Fourth Amendment violation allegations, and potentially an attack on the entire prison disciplinary system. On October 11, 2006, the state court action was dismissed by a magistrate judge because (1) the state court lacked subject matter jurisdiction over all allegations that did not seek review of a specific COPD hearing because these allegations were not "judicial or quasi-judicial" as required to bring a complaint under Colo. R. Civ. P. 106(a)(4) and (2) the remainder of the complaint was unintelligible and failed to comply with Colo. R. Civ. P. 8 which requires a "short and plain statement of the facts." Plaintiff sought to appeal this decision but the appeal was dismissed for lack of jurisdiction because Plaintiff incorrectly appealed to the Colorado Court of Appeals rather than to the District Court as required by Colorado law for decisions by magistrate judges. See Colo. R. Mag. 7. Thereafter, in May 2007, Plaintiff initiated this lawsuit pursuant to 42 U.S.C. § 1983.

Standard of Review

*2 A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) alleges that the complaint fails "to state a claim upon which relief can be granted." A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. The court must accept as true all well-pleaded facts and construe all reasonable allegations in the light most favorable to the plaintiff. United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir.1996).

Discussion

1. Defendants' Motion to Dismiss

First, Magistrate Judge Tafoya recommends that the claims against Defendants Abbott and Foshee be dismissed because Plaintiff has failed to allege personal participation by these defendants. I agree. "[P]ersonal participation is an essential allegation in a § 1983 claim." Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996) (citations omitted). Indeed, to be liable, "the supervisor must be personally involved in the constitutional violation, ' and a sufficient causal connection' must exist between the supervisor and the constitutional violation." Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir.2006) (quoting Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir.2006)). This means that the plaintiff must demonstrate that the supervisor "acted knowingly or with deliberate indifference' that a constitutional violation would occur." Id .; accord Jenkins v. Wood, 81 F.3d 988, 994-95 ("[T]he plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.'" (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992))). Furthermore, conclusory allegations are not sufficient, id., nor are allegations of mere negligence, Serna, 455 F.3d at 1151.

In this case, the complaint's only mention of Defendants Abbott and Foshee is in the description of the parties, which alleges "Associate Warden Foshee denied all my Grievances as frivolous and petty on all the issues in this Document" and Warden Abbott "was made aware of what staff was doing and ignored it." (Compl. At 3.) These allegations are insufficient to establish an "sufficient causal connection" between the defendants and the alleged constitutional violations as they are no more than conclusory allegations, demonstrate nothing more than negligence at most, and do not demonstrate that the defendants acted with knowledge that a constitutional violation would occur. As Plaintiff's objections do not remedy this defect, but merely argue that Defendants Abbott and Foshee should be vicariously liable, all claims against Defendants Abbott and Foshee, if any, shall be dismissed.

*3 Magistrate Judge Tafoya also recommends that the complaint be dismissed on res judicata grounds because the District Court previously dismissed Plaintiff's state court action which was based on essentially the same grounds as the current one. I disagree. Res judicata bars a subsequent claim if four elements are met: "(1) the prior suit must have ended with a judgment on the merits; (2) the parties must be identical or in privity; (3) the suit must be based on the same cause of action; and (4) the party must have had a full and fair opportunity to litigate the claim in the prior suit." In re Mersmann, , 505 F.3d 1033, 1049 (10th Cir.2007) (citing Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). In this case, the prior suit did not end with a final judgment on the merits as the state court action was dismissed for lack of jurisdiction and failure to comply with the state procedural rule. Indeed, "jurisdictional dismissals are not on the merits.'" See Park Lake Res. Ltd Liab. Co. v. USDA, 378 F.3d 1132, 1136 (quoting Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir.1983)). Furthermore, I am not aware of any case the affords res judicata preclusive effect to a dismissal for failure to provide a short and plain statement of the case. Therefore, I must address the other arguments set forth in Defendants' motion to dismiss.

Defendants argue that all claims relating to any COPD cases should be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

512 U.S. at 487 (emphasis in original). This rule applies whenever the decision would "implicitly question the validity of a conviction or duration of sentence." Muhammad v. Close, 540 U.S. 749, 751, 754-55 (2004). Furthermore, the requirement is applicable to "challenges to punishments imposed as a result of prison disciplinary infractions." Cardoso v. Calbone, 490 F.3d 1194, 1199 (10th Cir.2007) (citing Edwards v. Balisok, 520 U.S. 641, 648 (1997)). *4 In this case, as all of Plaintiff's challenges to his COPD cases implicate the validity of those convictions, they are barred by Heck as Plaintiff has not demonstrated that the convictions have been reversed, expunged, invalidated, or called into question by a writ of habeas corpus. I note that Plaintiff's convictions in the COPD cases affected the length of his sentence and/or imposed other punishment including loss of privileges. Plaintiff's response to the motion to dismiss merely sets forth with greater particularity the constitutional violations that he alleges occurred and does not argue that he has obtained favorable judgments for any of the COPD cases. Therefore, to the extent they seek damages, all claims that Plaintiff brings based on his COPD convictions shall be dismissed. These claims include that Plaintiff's disciplinary charges were based on false reports, that Plaintiff was denied the opportunity to show a surveillance tape or call witnesses at his hearing, and any other claim that Plaintiff makes by referencing the COPD cases.

Defendants next argue that Plaintiff's claims regarding being placed on RP status (Claim One) and being placed in segregation (part of Claim Two) must be dismissed because Plaintiff has no liberty interest in remaining in the general population or in retaining any privileges during his incarceration. "[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). Rather, a state "may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). To determine if a state has created such a liberty interest, a court must look to the "whether the condition imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484; accord Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484).

In this case, Plaintiff's response to the motion to dismiss alleges that he suffered "atypical and significant hardship" during his RP status and administrative segregation including (1) having his TV, lamp, fan, glasses, and headphones taken away; (2) being put in a punishment cell for fourteen and a half months; (3) being put in a punishment cell with "AIDS inmates" when he is not HIV-positive; (4) being put in a punishment cell with younger "want to be gang bangers"; (5) not being able to talk to other inmates; and (6) "being the Case Managers [sic] victim of Deliberate Indifference I became a target from other staff." (Docket No. 28 at 9-10.) Defendants argue that these allegations are insufficient to establish a liberty interest. I agree with Defendant.

First, with respect to administrative segregation, an inmate does not have an inherent liberty interest in remaining in the general population and avoiding being placed in administrative segregation. See Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir.2006). Nonetheless, the duration and degree of the segregation may be so severe as to implicate the due process clause. Id. In this case, however, Plaintiff's allegations concerning his segregation are insufficient to demonstrate a liberty interest under Sandin as Plaintiff provides no specific information regarding the length or conditions of his placement in administrative segregation such that I may determine that they "imposed atypical or significant hardship." FN1 Sandin, 515 U.S. at 484. Indeed, he alleges no more than he was placed in administrative segregation pending a disciplinary hearing-which has been held constitutional, see Childs v. Novak, 36 Fed.Appx. 364, 364 (10th Cir.2002) (unpublished) FN2 (determining that Sandin barred claim that placement in punitive administrative segregation pending a disciplinary hearing violated constitutional rights)-and that he was unable to speak to other inmates. These allegations are insufficient to demonstrate "atypical or significant hardship." Sandin, 515 U.S. at 484.

FN1. I note that the Tenth Circuit has determined that sua sponte dismissal of administrative segregation claims pursuant to 28 U.S.C. § 1915 is not appropriate without a detailed evaluation of how the plaintiff's confinement to administrative segregation compared to other inmates' confinement. See Trujillo, 465 F.3d at 1225 ("[A] district court errs in sua sponte dismissing a prisoner's due process claim under § 1915 if it does not have sufficient evidence before it to fully address both the duration and degree of the plaintiff's restrictions as compared with other inmates.'" (quoting Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 809 (10th Cir.1999))); Gaines v. Stenseng, 292 F.3d 1222, 1226 (10th Cir.2002) ("Although the court might properly conclude at the summary judgment stage that there is sufficient evidence to establish that such segregation mirrors conditions imposed upon inmates in administrative segregation and protective custody, and that therefore the complaint should be dismissed, it is inappropriate to invoke § 1915(e) to dismiss the claim at this stage in the litigation without the benefit of any such evidence." (citing Perkins, 165 F.3d at 809)). There is no similar rule, however, regarding dismissals based on the defendants' motion to dismiss. Therefore, I conclude that it is proper to evaluate Plaintiff's claims regarding administrative segregation under the standard Rule 12(b)(6) even though there is insufficient evidence on the record to engage in a complete evaluation of Plaintiff's administrative segregation as compared to that of other inmates.

FN2. Although the Tenth Circuit does not allow citation to unpublished opinions for precedential value, unpublished opinions may be cited for persuasive value. 10th Cir. R. 32.1.

*5 With respect to Plaintiff's placement on RP status for fourteen and a half months, I conclude that Plaintiff has also not demonstrated a liberty interest. First, I conclude that Plaintiff's liberty interests were not violated by restriction from possession his television, fan, lamp, glasses, and headphones while on RP status. "While an inmate's ownership of property is a protected property interest that may not be infringed without due process, there is a difference between the right to own property and the right to possess property while in prison." Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (citations omitted). Therefore, restrictions regarding possessions in a cell do not implicate a liberty interest as the prison has the discretion to determine what property an inmate may possess in his cell. See Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir.1999) (determining that prison regulations articulating what inmates could possess in their cell did not create a liberty interest in possessing those items under Sandin, 515 U.S. at 484). Furthermore, placement in a "punishment cell" with other inmates that Plaintiff does not like also does not implicate a liberty interest. Although there is a Fourth Amendment interest in being free from bodily harm, see Cortez v. McCauley, 478 F.3d 1108, 1125-26 (10th Cir.2007) ("[T]he interests protected by the Fourth Amendment are not confined to the right to be secure against physical harm; they include liberty, property, and privacy interests-a person's sense of security and individual dignity.'" (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1196 (10th Cir.2001))), Plaintiff has presented no specific allegations regarding a physical threat resulting from placement in "punishment cells" with the specified other inmates.

Defendants also argue that Plaintiff's claims regarding Cella and Reyes actions in his cell should be dismissed. First, they argue that if Plaintiff's claim is based on negligence, section 1983 does not provide a remedy. I agree as "[l]iability under 1983 must be predicated upon a deliberate deprivation of constitutional rights by the defendant, ' and not on negligence." Jojola v. Chavez, 55 F.3d 488, 490 (1995); accord Darr v. Town of Telluride, 495 F.3d 1243, 1257 (10th Cir.2007) ("Negligence is not a basis of liability under § 1983."). Second, Defendants argue that any claim based on intentional acts by Cella and Reyes must be dismissed because there is an adequate post-deprivation remedy available to Plaintiff. I agree. "The intentional deprivation of property is not a fourteenth amendment violation if adequate state post-deprivation remedies are available." Durre v. Dempsey, 869 F.2d 543, 546 (10th Cir.1989) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)). Colorado provides that a prisoner may sue a prison official for intentional deprivations of property. See Colo.Rev.Stat. § 24-10-105 (authorizing tort actions against public employees if their actions were "willful and wanton"). Therefore, I conclude that Plaintiff's claims based on any deprivation of property in his cell should be dismissed.FN3

FN3. I note that it appears that Plaintiff did not respond to this argument in his brief. ( See Docket No. 28.)

*6 Defendants' next argument is that Plaintiff's claim regarding legal access fails as he has not shown that he suffered any actual injury. "[T]he Fourteenth Amendment only guarantees the right of access to the courts." Penrod v. Zavaras, 94 F.3d 1399, 1403 (10t Cir.1996). Therefore, to sustain a claim for a Fourteenth Amendment violation, an inmate must that demonstrate that the denial of legal resources hindered his efforts to pursue a nonfrivolous legal claim. Id. (citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). Defendants argue that Plaintiff has failed to demonstrate that his ability to pursue a nonfrivolous claim was hindered by the return of the legal information sent to Plaintiff by the Center for Constitutional Rights and Alpine Legal Services. Plaintiff's only response to this argument is to state that the mail can be opened and read. However, this does not remedy the defect. Therefore, I conclude that Plaintiff's claim based on the rejection of Plaintiff's mailed legal information should be dismissed. Furthermore, I also conclude that Plaintiff's allegations that his outgoing mail was refused by the addressees fails to specify any conduct by any named defendant. As personal participation is necessary to state a claim under section 1983, these claims must also be dismissed. See Mitchell v. Maynard, 80 F.3d at 1441 (citation omitted).

Finally, I note that the remainder of Plaintiff's claims, if any, should be dismissed for failure to comply with Fed.R.Civ.P. 8(a). Rule 8(a) provides that "[a] pleading that states a claim for relief must contain... (2) a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) if it fails to comply with Fed.R.Civ.P. 8(a)(2)'s requirement of a short and plain statement and there appears to be no set of facts upon which relief may be granted. Monument Builders of Greater Kan. City, Inc. v. Am. Cemetery Ass'n, 891 F.2d 1473, 1480 (10th Cir.1989)); accord Monroe v. Owens, 38 Fed.Appx. 510, 513 (10th Cir.2002) (unpublished) ("Under Rule 12(b)(6), a district court may dismiss with prejudice a complaint that fails to comply with Federal Rule of Civil Procedure 8(a)(2)'s requirement of a short and plain statement of the claim' if there appears to be no set of facts on which the plaintiff may state a claim for relief." (quoting Monument Builders, 891 F.2d at 1480)); Abdelsamed v. United States, 13 Fed.Appx. 883, 884 (same). "[T]o state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.2007) (describing how a district court may articulate the requirements of Rule 8 to a lay person). In this case, although some claims for relief are discernable-all of which have been addressed supra -many other claims may be contained in the rather lengthy and meandering complaint. These claims for relief, however, are insufficient under Rule 8(a) as they are, at the very least, unspecific and difficult to discern from the complaint, and, therefore, shall be dismissed pursuant to Rule 12(b)(6). I note that this includes any claims based on his COPD convictions that seek anything other than damages because it is unclear what other relief Plaintiff seeks and any claims made pursuant to the First or Eighth Amendments as there are insufficient allegations supporting such claims.FN4

FN4. I note that Defendants make a number of other arguments supporting dismissal including, inter alia, qualified immunity. However, as I conclude that dismissal of the entire complaint is appropriate on the grounds articulated, I need not address Defendants' other arguments.

2. Plaintiff's Motions for Preliminary Injunctions

*7 Plaintiff has filed four motions for preliminary or permanent injunctions (Docket Nos. 31, 61, 70, 75). A preliminary injunction is an "extraordinary remedy", and, therefore, "the right to relief must be clear and unequivocal." Nova Health Sys. v. Edmondson, 460 F.3d 1295, (10th Cir.2006) (internal quotation marks omitted) (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)). The decision to grant injunctive relief is a matter of discretion. See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007) (noting that the Tenth Circuit reviews denials of preliminary injunctions for abuse of discretion). "To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Gen. Motors Corp., 500 F.3d at 1226 (citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)). Additionally, if the movant can establish that the latter three requirements "tip strongly in his favor, the test is modified, and the [movant] may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Flowers, 321 F.3d at 1256 ( quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002)).

In this case, Magistrate Judge Tafoya determined that because she recommended that all of Plaintiff's claims be dismissed, Plaintiff was unable to meet the first factor for a preliminary injunction-substantial likelihood of success on the merits. Although I conclude that dismissal is warranted on different grounds than those upon which Magistrate Judge Tafoya based her recommendation, the analysis of Plaintiff's showing of the likelihood of success remains the same. I further note that Plaintiff has not demonstrated that the other three requirements "tip strongly in his favor" such that the "success on the merits" prong showing is reduced. Id. Therefore, I agree with Magistrate Judge Tafoya that denial of Plaintiff's motions for preliminary injunction is appropriate.

Accordingly, it is ordered:

1. The recommendation of Magistrate Judge Tafoya issued August 21, 2008 (Docket No. 80) is accepted as modified.

2. Defendants' Motion to Dismiss (Docket No. 24) is granted.

3. Plaintiff's Motions for Preliminary Injunction (Docket Nos. 31, 61, 70, 75) are denied.

4. This case is dismissed with prejudice.

Prisoner brought action against two corrections officials, alleging that the Oklahoma Department of Corrections failed to provide adequate treatment of his post-traumatic stress disorder. The United States District Court dismissed complaint, and prisoner appealed. The Court of Appeals, Henry, Circuit Judge, held that: (1) prisoner failed to state an ADA claim, absent allegations that corrections officials discriminated against him on the basis of his disorder, and (2) prison officials' failure to provide prisoner with treatment at the facility of his choice was insufficient to state an Eighth Amendment claim.

Affirmed.

*560 Before BALDOCK, HENRY, and LUCERO, Circuit Judges.FN*

FN* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). Therefore, appellant's request for oral argument is denied, and the case is ordered submitted without oral argument.

ORDER AND JUDGMENT FN**

FN** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

HENRY, Circuit Judge.

**1 Bilal Rashad, a prisoner in the custody of the Oklahoma Department of Corrections, filed this pro se action against two corrections officials, alleging that the Department failed to provide adequate treatment of his post-traumatic stress disorder. According to Mr. Rashad, this failure to provide treatment violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 and the Eighth Amendment. He sought an injunction directing the defendants to provide the requested treatment.

In a thorough and well-reasoned report and recommendation, the magistrate judge concluded that Mr. Rashad's complaint failed to state a claim upon which relief could be granted. He further recommended that the dismissal count as a "prior occasion" under 28 U.S.C. § 1915(g). The district court agreed and dismissed Mr. Rashad's complaint. Upon de novo review, see Perkins v. Kansas Dep't of Corrections , 165 F.3d 803, 806 (10th Cir.1999), we agree with the magistrate judge and the district court.

With regard to Mr. Rashad's ADA claim, it is clear that prisons are "public entities" covered by Title II of the ADA. See Pennsylvania Dep't of Corrections v. Yeskey , 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). However, contrary to Mr. Rashad's assertions, the failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation. See Bryant v. Madigan , 84 F.3d 246, 249 (7th Cir.1996) (concluding that the ADA "would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners" and that the statute "does not create a remedy for medical malpractice"); McNally v. Prison Health Servs. , 46 F.Supp.2d 49, 58 (D.Me.1999) (distinguishing between "claims that the medical treatment received for a disability was inadequate from claims that a prisoner has been denied access to services or programs because he is disabled, " and concluding that only the latter class of claims states an ADA violation). In contrast, the allegation that a disabled prisoner has been denied services that have been provided to other prisoners may state an ADA claim. See, e.g., McNally , 46 F.Supp.2d at 58 (concluding that an HIV patient's claim of discriminatory denial of prescription services provided to general prison population would state an ADA claim).

Here, as the magistrate judge noted, Mr. Rashad's complaint alleges inadequate treatment of his post-traumatic stress disorder but does not allege that the defendant corrections officials discriminated against him on the basis of that disorder. We therefore agree that Mr. Rashad has failed to state an ADA claim.

As to Mr. Rashad's second claim, the magistrate judge properly noted that *561 the Eighth Amendment protects prisoners from officials' deliberate indifference to serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Eighth Amendment claims have two elements: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind." Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir.1996) (internal quotation marks omitted). The objective component requires an "extreme deprivation" denying a "minimal civilized measure of life's necessities." Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted). As to the subjective component, in order to be held liable, the defendant official must act with deliberate indifference to the prisoner's health or safety. See Farmer v. Brennan , 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

**2 "A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.'" Green v. Branson , 108 F.3d 1296, 1303 (10th Cir.1997) (quoting Estelle , 429 U.S. at 106, 97 S.Ct. 285). However, delays in providing treatment may violate the Eighth Amendment- "if there has been deliberate indifference which results in substantial harm.'" Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir.1993) (quoting Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir.1993)). "Delays in providing medical care that courts have found to violate the Eighth Amendment have frequently involved life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner's medical problems." Hunt. v. Uphoff , 199 F.3d 1220, 1224 (10th Cir.1999).

We agree with the magistrate judge's assessment of Mr. Rashad's Eighth Amendment claim. Although he alleges that prison officials refused to grant his request for treatment at a Veterans Administration facility, Mr. Rashad acknowledges that mental health professionals are available to provide him with treatment within the Department of Corrections. The fact that Mr. Rashad has not been provided with treatment at the facility of his choice is insufficient to state an Eighth Amendment claim.

In his appellate brief, Mr. Rashad contends that the magistrate judge and the district court erred in failing to allow him to amend his complaint and to conduct additional discovery. Although we construe pro se pleadings liberally, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991), we need not allow the amendment of pleadings and the conducting of discovery when the plaintiff has failed to assert specific facts to support his claims. See Northington v. Jackson , 973 F.2d 1518, 1520-21 (10th Cir.1992). Here, there is no indication that further proceedings would reveal valid claims against the defendants.

III. CONCLUSION

Accordingly, we AFFIRM the district court's dismissal of Mr. Rashad's complaint. The district court's dismissal counts as a "prior occasion" for the counting purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Detention Center Medical Facility , 175 F.3d 775, 780 (10th Cir.1999).

See

ORDER

**1 Darren D'Wayne Morris sued a number of prison officials, claiming that he missed meals, showers, and recreation time because his hearing disability prevented him from complying with prison rules. The district court granted summary judgment for the defendants. We affirm.

*688 The facts are uncontested. Morris is a Wisconsin prisoner who was housed in the segregation unit at the Waupun Correctional Institution in August 2006. (He was transferred to Columbia Correctional Institution in October 2006.) Prisoners in segregation at Waupun were alerted to receive their meals, showers, and other essentials by an audio tone sounded over the intercom. If a prisoner did not stand at his cell door when the tone sounded, prison officials assumed that he was refusing the meal or shower. Because Morris suffered from hearing loss in both ears, and at the time had only one functional hearing aid, he could not always hear the tone; he says he missed out on 17 meals between August 4 and August 27. He also sometimes missed showers and recreation, and on eight occasions was not given his medication. (Morris took three prescriptions to treat depression, psychosis, and a fungal infection on his foot.) Morris alerted prison officials numerous times that he had a hearing impairment, requesting a placard for his door so that he would not miss meals or medication. A placard was placed on his door on August 21, though he continued to miss a few meals after that date.

Morris sued for damages and injunctive relief under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134. He claimed that the defendants knew about his disability but deliberately disregarded his needs by passing him over for meals and medication. Morris also claimed that the prison's policy requiring him to respond to an audio cue in order to get essential needs violated the ADA, which prohibits discrimination in the provision of public services. 42 U.S.C. § 12132; Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006). He sought damages under the ADA for deprivation of food and medicine, and injunctive relief requiring Waupun to redesign lunchroom facilities to ensure that those with hearing disabilities would be safe even though they could not respond to an audible alarm.

The district court granted summary judgment to the defendants. The court concluded that missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the Eighth Amendment. Moreover, the court concluded that Morris had not established that the defendants were deliberately indifferent to his needs for food and medicine, and that the prison officials were at most negligent. As for the ADA claims, the court concluded that his request for injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an Eighth Amendment claim doomed his request for damages, which are available under Title II only for constitutional violations.

**2 On appeal, Morris contends that the district court improperly granted summary judgment for the defendants. He maintains that a genuine issue exists concerning how seriously he was affected by missing food and medicine. He also contends that his request for injunctive relief was not moot because, as a prisoner serving a life sentence, he is likely to be transferred back to Waupun at some later point.

The Eighth Amendment requires prison officials to provide adequate food, clothing, shelter, and medical care to prisoners. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sain v. Wood, 512 F.3d 886, 893 (7th Cir.2008). To establish an Eighth Amendment violation, a prisoner must show that he has been severely harmed and that prison officials were deliberately indifferent to that harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.2006). This requires that prison officials knew about a substantial risk of *689 harm to the inmate and refused to act to prevent that harm. Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008). Mere negligence-even gross negligence-does not violate the Constitution. Lee v. Young, 533 F.3d 505, 509 (7th Cir.2008).

Morris argues that his weight loss while in segregation belies the district court's conclusion that he suffered no serious harm. But as the district court noted, he was examined five times by medical staff during his 24-day stay in segregation, and the staff noted no serious medical problem related to weight loss or otherwise caused by missing food or medicine. Whether or not the 17-day delay in placing the placard outside his cell suggests a failure to provide adequate care, Morris cannot establish a constitutional violation because he has not shown that missing his meals or medicine caused serious harm or lasting detriment. See Freeman v. Berge, 441 F.3d 543, 547 (7th Cir.2006) (concluding that even a 45-pound weight loss would not support a claim without evidence of serious suffering or lasting harm); Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003) (upholding jury's finding that missing one week of HIV medication did not cause serious injury); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 811-12 (7th Cir.2000) (concluding that missing some doses of medicine was not a constitutional violation without showing of serious harm).

As for his ADA claims, although Morris correctly notes that Title II applies to prisoners, see Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000), the district court correctly rejected his request for injunctive relief. "[W]hen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner's claim, become moot." Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.2004); see also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996). Morris was transferred to Columbia in October 2006, and he needed to provide more than just his conjecture of a possible return to Waupun to stave off dismissal for mootness. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.1988).

**3 But his claim for damages based on past conduct is not mooted by his transfer. Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). The district court correctly recognized that Title II creates a private cause of action for damages against states for conduct that violates the Fourteenth Amendment, and so Title II abrogates state sovereign immunity at least for those claims that independently violate the Constitution. United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006); Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 874 (7th Cir.2006). As the district court properly stated, though, Morris's inability to establish an Eighth Amendment claim forecloses this avenue for relief.

But the district court did not note that in Georgia the Court left open the question whether the ADA could validly abrogate sovereign immunity for non-constitutional violations. 546 U.S. at 159 , 126 S.Ct. 877. In reserving this question, the Court instructed lower courts to determine in the first instance, claim by claim, whether Congress's purported abrogation of sovereign immunity is valid when the challenged conduct violates the ADA but not the Constitution. Georgia, 546 U.S. at 159, 126 S.Ct. 877.

But Title II only provides for damages if a public official intentionally discriminates because of disability. See * 690 Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 278 (7th Cir.2007); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002); Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002). And Morris has not shown that any discrimination he suffered was intentional. Prison officials initially subjected him to their policy requiring prisoners in segregation to respond to an audio cue. But Morris's complaints about not being able to hear the audio cue were heeded by the prison administrators, who placed a placard outside his cell to alert guards that he had a hearing disability, and the administrators followed up by sending the guards a memorandum regarding his condition. The fix was simple, low-cost, low-tech, and effective to boot-within days Morris stopped missing meals. One wonders why then it took seventeen days to implement. Prison officials' initial failure to accommodate Morris's disability might at worst constitute negligence, but negligence alone cannot support a Title II claim. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) (concluding that bureaucratic negligence would not establish intentional discrimination). Because Morris presented no evidence to support a damages claim under the ADA for intentional discrimination, we need not reach the question whether the ADA validly abrogates Wisconsin's sovereign immunity.

AFFIRMED.

Edward Lee Hicks, Canon City, CO, pro se.

James Lawrence Burgess, Writer Mott, Golden, CO, Jennifer Susan Huss, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER ADOPTING THE RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE

WILLIAM J. MARTÍNEZ, District Judge.

*1 This matter is before the Court on (i) the January 23, 2012 Recommendation by U.S. Magistrate Judge Kathleen M. Tafoya (ECF No. 61) (the "January 23, 2012 Recommendation") that Defendants Keller, Holst, Russell, Steinbeck, and Nelson's (the "CDOC Defendants") Motion to Dismiss Plaintiff's Amended Complaint be granted in part and denied in part FN1, and (ii) the March 7, 2012 Recommendation by U.S. Magistrate Judge Tafoya (ECF No. 79) (the "March 7, 2012 Recommendation") (jointly, the "Recommendations"), that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot be granted. These Recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

FN1. On April 19, 2012, per stipulation, all claims against Defendants Anderson, Doe, Kemp, and Tawnie (the "Jefferson County Defendants") were dismissed with prejudice. (ECF No. 96.) Therefore, the Court only reviews the January 23, 2012 Recommendation insofar as it deals with the non-Jefferson County Defendants, and the Jefferson County Defendants' Motion to Dismiss (ECF No. 26) is Denied as Moot.

I. BACKGROUND

The facts relevant to a resolution of these Motions to Dismiss are detailed in the Recommendations. Briefly, Plaintiff is a currently incarcerated pro se prisoner with the Colorado Department of Corrections ("CDOC"). (Am. Compl. (ECF No. 15.)) Defendants are various employees of the CDOC. ( Id. ) The instant lawsuit arises from Plaintiff's claims that Defendants lost and failed to replace his hearing-aid.

Plaintiff's operative Complaint for purposes of resolving the Motions to Dismiss was filed on June 3, 2011.FN2 ( Id. ) Plaintiff's Amended Complaint alleges violations of the Eighth and Fourteenth Amendments of the United States Constitution, brought under 42 U.S.C. § 1983, and violations of the Americans with Disabilities Act ("ADA"). ( Id. )

FN2. Plaintiff's Amended Complaint does not feature any exhibits. However, Plaintiff's original Complaint, filed February 18, 2011 (ECF. No. 1) does contain exhibits, and it is clear that Plaintiff, in his Motion to Dismiss Response, is attempting to refer to the exhibits attached to his original Complaint. Accordingly, the Court construes Plaintiff's Amended Complaint to include the exhibits attached to his original Complaint-specifically pages 8-83 of Document Number 1 as scanned by the Clerk of Court.

On August 29, 2011, the CDOC Defendants filed their Motion to Dismiss requesting that the Court dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of jurisdiction over the subject matter, failure to state a claim upon which relief can be granted, and qualified immunity. (CDOC Mot. to Dismiss (ECF No. 46.)) On October 28, 2011, Plaintiff filed his Response to the CDOC Defendants' Motion (ECF No. 55), and the CDOC Defendants filed their Reply to Plaintiff's Response on November 14, 2011 (CDOC Reply (ECF No. 57)).

On the January 23, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss be granted in part and denied in part, as described below in the analysis section. (ECF No. 61.) On February 6, 2012, the CDOC Defendants filed a timely Objection to the January 23, 2012 Recommendation (CDOC Obj. (ECF No. 64)), and Plaintiff filed his Objection on February 27, 2012 (Pl. Obj. (ECF No. 77)).FN3

FN3. By Court Order, Plaintiff was given until February 28, 2012 to file his Objection to the January 23, 2012 Recommendation. (ECF No. 67.)

On January 30, 2012, the CDOC Defendants filed a Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot, arguing that Plaintiff's recent receipt of a hearing-aid mooted his claims for injunctive relief. (ECF No. 62.) On February 27, 2012, Plaintiff filed his Response to the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief. (ECF No. 76).

On the March 7, 2012, the Magistrate Judge issued her Recommendation that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot be granted. (ECF No. 79.) Neither party filed an objection to the March 7, 2012 Recommendation.

*2 For the reasons stated below, Plaintiff's and the CDOC Defendants' objections to the January 23, 2012 Recommendation are OVERRULED, the Magistrate Judge's January 23, 2012 Recommendation is ADOPTED in its entirety, and the CDOC Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Further, the Magistrate Judge's March 7, 2012 Recommendation is ADOPTED in its entirety, and the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot is GRANTED.

II. LEGAL STANDARDS

When a Magistrate Judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Id.

A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). When considering a Rule 12(b)(1) motion, however, the court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations... [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

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). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) ( citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The court's function on a Rule 12(b)(6) motion is not to 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).

*3 The concept of "plausibility" at the dismissal stage refers not to whether the allegations are likely to be true; the court must assume them to be true. See Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192-93 (10th Cir.2009). The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).

Further, in considering the Magistrate Judge's Recommendations in the instant case, the Court is also mindful of Plaintiff's pro se status, and accordingly, reads his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in Plaintiff's use of legal terminology and proper English. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).

III. ANALYSIS

A. The January 23, 2012 Recommendation

The Magistrate Judge's January 23, 2012 Recommendation contains numerous findings and conclusions. (Jan 23, 2012 Rec. at 31-32.) Neither party objects to the majority of these findings. However, the CDOC Defendants object to the Magistrate Judge's recommendation that their Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity be denied (CDOC Obj. at 3-4), and Plaintiff objects to the Magistrate Judge's recommendation that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities be dismissed. (Pl. Obj. at 1-8). The Court will review de novo each portion to which a specific objection was made. Otherwise, the Court will review the January 23, 3012 Recommendation for clear error. Fed.R.Civ.P. 72(b)(3).

1. The CDOC Defendants' Objections

The Magistrate Judge recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity be denied. (Jan. 23, 2012 Rec. at 20-25.) The CDOC Defendants object to this recommendation arguing that Plaintiff fails to state an Eighth Amendment claim against Defendant Nelson, and that she is entitled to qualified immunity. (Obj. at 3-9.)

Plaintiff seeks to establish that Defendant Nelson was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. (Am. Compl. at 20-23.) In order to state an Eighth Amendment cruel and unusual punishment claim, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.2006) ( quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), cert. denied, 549 U.S. 856 (2006). "The test for constitutional liability of prison officials [under an Eighth Amendment cruel and unusual punishment claim] involves both an objective and a subjective component.'" Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.2005). As the Tenth Circuit has explained: *4 to properly set forth an Eighth Amendment claim on which relief may be granted, [the prisoner] must set forth facts demonstrating [1] that his alleged medical need... was sufficiently serious to meet the objective element of the deliberate indifference test, and [2] that the Defendants' delay in meeting that need caused him substantial harm. Finally, to meet the subjective element of the deliberate indifference test, [the prisoner] must allege facts supporting an inference [3] that Defendants knew about and disregarded a substantial risk of harm to his health or safety.

Oxendine v. Kaplan, 241 F.3d 1272, 1276-77 (10th Cir.2001) (quotations omitted). "A medical need is serious if it has been diagnosed by a doctor or is one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (citation and internal quotation omitted). After a thorough examination of the record, the Magistrate Judge recommends that while Plaintiff fails to state a claim for deliberate indifference against Defendants Keller, Holst, Russell, and Steinbeck in their individual capacities, Plaintiff's allegations against Defendant Nelson satisfy both prongs of the Eighth Amendment inquiry. (Jan. 23, 2012 Rec. at 20-25.) The Court agrees.

Reading Plaintiff's Amended Complaint in the light most favorable to him, as the Court must on a Motion to Dismiss, Plaintiff has sufficiently alleged that Defendant Nelson denied Plaintiff a replacement hearing-aid with deliberate indifference to his serious medical need. (Am. Compl. at 20-23.) Plaintiff alleges that despite learning of the circumstances surrounding the loss of his hearing-aid, including that Plaintiff's hearing-aid was provided by the CDOC and that he was not responsible for its loss, Defendant Nelson nevertheless informed Plaintiff that his request for a replacement hearing-aid was denied. ( Id., Exs. 4A, 14, 15.) Moreover, Defendant Nelson informed Plaintiff that he would be responsible for replacing the hearing-aid, at a cost of between $4, 000 and $5, 000. ( Id. at 14.) Plaintiff's allegations of intentional deprivation of his hearing-aid, a necessary medical devise, sufficiently state a claim that Defendant Nelson was deliberately indifferent to Plaintiff's serious medical needs. See Large v. Wash. Cnty. Detention Ctr., 915 F.2d 1564, 1990 WL 153978, at *2 (4th Cir. Oct. 16, 2007) ("under appropriate circumstances the refusal to supply a hearing aid to a convict could constitute deliberate indifference to a serious medical need"); Kollyns v. Gintoli, No. 04-cv-2322, 2006 WL 2706962, at *6 n. 7 (D.S.C. Sept. 15, 2006) ("In certain circumstances, the failure to provide basic corrective/medical devices may amount to deliberate indifference to a serious medical need."); Snodgrass v. Heinzl, 05-cv-608, 2005 WL 3465546, at *7 (W.D.Wisc. Dec. 16, 2005) (declining to dismiss a deliberate indifference claim based on "a state official's failure to provide a prisoner with hearing aids after tests show he needed them to hear because [i]t is arguable that if the normal function[] of... hearing can be restored easily by such things as a... hearing aid, a state's refusal to provide these things would violate the Eighth Amendment."). Accordingly, the Court finds that Plaintiff has sufficiently alleged a § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity.

*5 Defendants also argue that Defendant Nelson is entitled to qualified immunity in her individual capacity on Plaintiff's Eight Amendment claim. (CDOC Obj. at 9-10.) When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff who must meet a heavy two-part burden. See Maestas v. Lujan, 351 F.3d 1001, 1006-1007 (10th Cir.2006). The plaintiff must first establish that the defendant's actions violated a constitutional or statutory right. Id. If the plaintiff establishes a violation of a constitutional or statutory right, he must then demonstrate that the right at issue was clearly established at the time of the defendant's unlawful conduct such that a reasonable person in defendant's position would have known that his conduct violated that right. See Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir.2006). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the defendant's position] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001).

The Court finds that Defendant Nelson is not entitled to qualified immunity. "[T]here is little doubt that deliberate indifference to an inmate's serious medical need is a clearly established constitutional right." Mata, 427 F.3d at 749; see also Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir.2001) ("A prison official violates an inmate's clearly established Eighth Amendment rights if he acts with deliberate indifference to an inmate's serious medical needs"); Ayotte v. McPeek, 08-cv-02508, 2009 WL 1965705, at *5 (D. Colo. June 5, 2009) (concluding that a refusal to provide batteries for and/or service the plaintiff's hearing-aid should not be dismissed because it remained to be seen whether the plaintiff's condition amounted to a "serious medical need"). Thus, a reasonable prison official in Defendant Nelson's position should or would have understood he was violating Plaintiff's constitutional rights to adequate medical treatment by denying him his prison-issued hearing-aid, and Plaintiff had an established constitutional right to his hearing-aid under the circumstances. See Saucier, 533 U.S. at 202. As such, viewing the facts in the light most favorable to Plaintiff, Defendant Nelson's conduct violated Plaintiff's established constitutional right to receive adequate attention for a serious medical condition, and Defendant Nelson is not entitled to qualified immunity on Plaintiff's Eighth Amendment claim.

For the reasons stated above, the CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity is denied.

2. Plaintiff's Objections

Plaintiff objects to the Magistrate Judge's recommendation that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities be dismissed. (Pl. Obj. at 1-8.)

*6 The Court has thoroughly reviewed the January 23, 2012 Recommendation and agrees with the Magistrate Judge that all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities should be dismissed. Plaintiff's factual allegations support an inference that Defendants Keller, Holst, Russell and Steinbeck either acted negligently by losing Plaintiff's hearing-aid or acted in a manner that did not constitute deliberate indifference to his medical needs. (Am. Compl. at 8-14, 20, Exs. 14, 14A, 14B, & 14C.) For example, Plaintiff admits that his hearing aid was "negligently lost." ( Id. at 8); see also Farmer, 511 U.S. at 834 (negligence is insufficient to state a claim for deliberate indifference). Accordingly, Plaintiff's allegations do not sufficiently establish that these defendants acted with deliberate indifference to his serious medical needs. See Larson v. Meek, 240 F.Appx. 777, 781 (10th Cir.2007) (defendant's "denial of [] grievances alone is insufficient to establish personal participation in the alleged constitutional violations."); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (holding that mere participation in the grievance process, without any connection to the violation of constitutional rights, generally is insufficient to establish personal participation).

Plaintiff also fails to state a claim under the ADA against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities. Plaintiff's claim against these Defendants arises under Title II of the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also Robertson v. Las Animas Cnty. Sheriff's Dept., 50 F.34d 1185, 1193 (10th Cir.2007) (Title II of ADA "extends to discrimination against inmates detained in a county jail."). However, "[t]he proper defendant in a Title II claim is the public entity itself or an official acting in his or her official capacity." Nasious v. Colo.-Office of Governor Bill Ritter, 09-cv-01051, 2011 WL 2601015, at *3 (D. Colo. June 29, 2011) (citation omitted). Accordingly, to the extent that Plaintiff seeks to hold the CDOC Defendants individually liable for violations of the ADA, the Court finds that Plaintiff's ADA claims are properly dismissed.

Therefore, all claims brought against Defendants Keller, Holst, Russell and Steinbeck in their individual capacities are dismissed with prejudice.

3. Findings Without Objection

Neither party has objected to the following Magistrate Judge's recommendations: FN4

FN4. While neither party objected to the Magistrate Judge's recommendation that Plaintiff's § 1983 claims for injunctive relief proceed, Plaintiff's claims for injunction relief are discussed in the March 7, 2012 Recommendation section below.

(1) the dismissal of Plaintiff's § 1983 claims for damages and declaratory relief against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities; *7 (2) the dismissal of Plaintiff's § 1983 Fourteenth Amendment claim against Defendant Nelson in her individual capacity;

(3) the dismissal of Plaintiff's ADA claim against the Defendant Nelson in her individual capacity;

(4) denying dismissal of Plaintiff's ADA claims against the CDOC Defendants in their official capacities;

(5) denying dismissal of Plaintiff's request for punitive damages under § 1983; and

(6) denying dismissal of Plaintiff's request for compensatory damages for emotional and mental trauma.

(Jan. 23, 2012 Rec. at 31-32.)

The Court has reviewed these rulings of the Magistrate Judge and finds no clear error in these determinations. See Fed.R.Civ.P. 72(b) advisory committee's note; Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t 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"). Accordingly, the Magistrate Judge's January 23, 2012 Recommendation is adopted with respect to these claims.

B. The March 7, 2012 Recommendation

The Magistrate Judge's March 7, 2012 Recommendation recommends that the CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot (ECF No. 62) be granted, and that Plaintiff's claims for injunctive relief be dismissed, because Plaintiff finally received a replacement prison-issued hearing-aid on December 7, 2011. (Mar. 7, 2012 Rec. at 2-4.) Neither party has objected to this recommendation.

The Court has reviewed the March 7, 2012 Recommendation and finds no clear error in its determination. See Fed.R.Civ.P. 72(b) advisory committee's note; Thomas, 474 U.S. at 150. Accordingly, the Magistrate Judge's March 7, 2012 Recommendation is adopted in its entirety.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants' and Plaintiff's objections to the Magistrate Judge's January 23, 2012 Recommendation (ECF No. 61) are OVERRULED and the Recommendation is ADOPTED in its entirety;

2. The Magistrate Judge's March 7, 2012 Recommendation (ECF No. 79) is ADOPTED in its entirety;

3. The CDOC Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 46) is GRANTED IN PART and DENIED IN PART;

4. The Jefferson County Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 26) is DENIED AS MOOT;

5. Plaintiff's § 1983 claims for damages and declaratory relief against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities are DISMISSED WITH PREJUDICE;

6. Plaintiff's § 1983 Fourteenth Amendment claim against Defendant Nelson in her individual capacity is DISMISSED WITH PREJUDICE;

7. Plaintiff's § 1983 claims against Defendants Keller, Holst, Russell, and Steinbeck in their individual capacities are DISMISSED WITH PREJUDICE;

8. Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their individual capacities are DISMISSED WITH PREJUDICE;

*8 9. The CDOC Defendants' Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot (ECF No. 62) is GRANTED, and Plaintiff's claims for injunctive relief are DISMISSED WITH PREJUDICE;

10. The CDOC Defendants' Motion to Dismiss Plaintiff's § 1983 Eighth Amendment claim against Defendant Nelson in her individual capacity is DENIED;

11. The CDOC Defendants' Motion to Dismiss Plaintiff's ADA claims against Defendants Keller, Holst, Russell, Steinbeck, and Nelson in their official capacities is DENIED;

12. The CDOC Defendants' Motion to Dismiss Plaintiff's request for punitive damages under § 1983 is DENIED; and

13. The CDOC Defendants' Motion to Dismiss Plaintiff's request for compensatory damages for emotional and mental trauma is DENIED.

ORDER AND JUDGMENTFN*

FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

PAUL J. KELLY, JR., Circuit Judge.

**1 After examining the briefs and appellate record, this panel has determined unanimously *799 that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiffs brought this pro se civil rights action alleging constitutional violations in connection with a series of state child custody proceedings. The factual details and constitutional underpinnings of the claims are not clear from plaintiffs' pleadings or briefs. Apparently, some of the state proceedings are not yet complete, and plaintiffs sought to suspend those proceedings and to restrict investigation/enforcement of parental code violations more generally by moving for an injunction against the state governor and human services director, who had not been named in the suit. The district court denied the motion on alternative grounds, holding injunctive relief (1) barred by Eleventh Amendment immunity, (2) unavailable against non-parties, and (3) unsubstantiated on the merits in any event. We take jurisdiction under 28 U.S.C. § 1292(a)(1), review for an abuse of discretion, see Schrier v. University of Colorado, 427 F.3d 1253, 1258 (10th Cir.2005), and affirm on the basis of the latter two grounds.FN1

FN1. Even a discretionary decision cannot rest on an error of law, see Schrier, 427 F.3d at 1258, and the district court's holding that the Eleventh Amendment bars injunctive relief against state officers in their official capacities is contrary to the teaching of Will v. Michigan Department of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). See, e.g., Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1156 (10th Cir.2001).

In order to justify injunctive relief, the movants must establish that:

(1) [they] will suffer irreparable injury unless the injunction issues; (2) the threatened injury... outweighs whatever damages the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits.

Id. (quotations omitted). Moreover, the right to relief "must be clear and unequivocal." Id. (quotation omitted). Plaintiffs' rambling, vague, and conclusory submissions do not satisfy this standard. It is not possible to gauge in a meaningful way any one of the relevant factors, much less conclude with the requisite conviction that they collectively warrant the relief requested. The district court also emphasized that the officials plaintiffs sought to enjoin had not been named or served in the proceeding. A circuit decision issued over thirty years ago indicates that this fact would, in itself, preclude the requested relief, because personal jurisdiction over the targets of the injunction (not already established in the underlying case) could not be created by the All Writs Act, 28 U.S.C. 1651. See Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1355-56 (10th Cir.1972). However, the Supreme Court subsequently decided United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), which upheld a non-party injunction (compelling a telephone company to assist the government's use of investigative pen registers) and stated that "[t]he power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action..., are in a position to frustrate [or facilitate] the implementation of a court order or the proper administration of justice." Id. at 174, 98 S.Ct. 364. We have *800 noted that New York Telephone arguably modified Commercial Security Bank by suggesting "that the All Writs Act may be a basis for personal jurisdiction when subject matter jurisdiction is otherwise obtained." Hillman v. Webley, 115 F.3d 1461, 1469 n. 5 (10th Cir.1997) (quotation omitted). While the non-party status of an injunction's target may thus no longer be a conclusive impediment, it nevertheless heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors noted above but those considerations must also constitute the "appropriate circumstances" referred to in New York Telephone to justify issuing an injunction against a non-party. Plaintiffs' motion for injunction did neither and was properly denied.

**2 The order of the district court is AFFIRMED.


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