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Welsh v. Bishop

United States District Court, District of Colorado

March 9, 2015

JARED WELSH, Plaintiff,
NEIL BISHOP personal capacity, Defendant.


PHILIP A. BRIMMER United States District Judge.

This matter is before the Court on the Motion[] to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [Docket No. 45] filed by defendant Neil Bishop.


Plaintiff was convicted in a Mesa County, Colorado criminal case and sentenced to incarceration at the Mesa County Community Corrections Facility (“ComCor”), where he arrived on March 4, 2012. Docket No. 44 at 2, ¶ 6. Mr. Bishop was plaintiff’s case manager at ComCor. Id. at 2, ¶ 4. As a condition of his probation and placement at ComCor, plaintiff was required to work. Id. at 3, ¶ 7. Plaintiff commuted to and from work by bicycle and was required to follow a pre-approved route whenever he left the ComCor facility. Id. Plaintiff was not permitted to leave the facility to see a physician without permission from ComCor staff. Id.

On July 5, 2012, plaintiff received permission to search for a second job. Id. While coming down a hill on his bicycle, the bicycle’s front tire malfunctioned, causing plaintiff to fly over the handlebars of his bike. Id. He landed on the street, suffering a broken thumb on his right hand and ligament damage to both hands. Id. Plaintiff managed to return to the ComCor facility and checked in with Tracie Clampitt, a ComCor employee. Id. Plaintiff’s clothing was torn, he had abrasions on his knee, and his right arm was swollen. Id. Ms. Clampitt gave plaintiff ibuprofen, but refused to give him permission to seek medical attention. Id. at 3-4, ¶ 7. Ms. Clampitt demanded that plaintiff produce paperwork proving that he had applied for a job that day. Id.

Over the next few weeks, plaintiff was in increasing pain and his right arm became swollen and discolored. Id. at 4, ¶ 8. Plaintiff repeatedly asked for permission from Mr. Bishop to seek medical attention, but Mr. Bishop denied plaintiff’s requests. Id. Mr. Bishop ordered plaintiff to continue riding his bike to and from work and refused to assign plaintiff to a bottom bunk. Id. Plaintiff claims that his condition made it difficult to make his bed. Id. Mr. Bishop “wrote up” plaintiff for not properly making his bed. Id. In August, Mr. Bishop was ordered by his supervisors to permit plaintiff to leave the ComCor facility in order to obtain medical care. Id. Plaintiff received medical treatment, but permanently lost 60% of extension in his right wrist. Id. Plaintiff claims that the delay in receiving medical care caused the permanent damage to his wrist. Id.

In October 2012, plaintiff missed a medical appointment because Mr. Bishop intentionally or recklessly failed to place the appointment in the ComCor computer system before leaving for vacation. Id. at 5, ¶ 9. Plaintiff was unable to reschedule the appointment for several weeks. Plaintiff claims that Mr. Bishop did not want plaintiff to obtain medical care for his broken wrist. Id.

Plaintiff also claims that ComCor managers Kyle Merriman, Beth Torgersen, and Michelle Cooley were responsible for ensuring that all inmates were adequately fed each day. Id. at 6, ¶ 11. Plaintiff claims that, upon first arriving at ComCor, he was regularly denied access to food due to a flaw in ComCor policy. Id. at 5-6, ¶ 10.

On June 30, 2013, plaintiff filed a complaint, Docket No. 1, and, on April 2, 2014, plaintiff filed the Amended Complaint. Docket No. 44. Plaintiff’s lone remaining claim[2] for relief under 42 U.S.C. § 1983 alleges that Mr. Bishop in his individual capacity denied plaintiff access to medical care in violation of the Eighth Amendment. Id. at 8, ¶12.[3]

On April 16, 2014, Mr. Bishop filed the present motion. Docket No. 45. Mr. Bishop argues that plaintiff fails to state a claim against him and that Mr. Bishop is entitled to qualified immunity. Id. at 7-10.


To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . . plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted). Thus, even though the modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations omitted). Where, as here, a defendant invokes the doctrine of qualified immunity, the plaintiff is not subject to a heightened pleading requirement. See Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (“we apply the same standard in evaluating dismissals in qualified immunity cases as to dismissals generally” (quotations omitted)).[4]


“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” See Farmer v. Brennan, 511 U.S. 825, 828 (1994); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (“The Eighth Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” (citing DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 199 (1989))). “The analysis [of an Eighth Amendment claim] should not be based on ‘a court’s idea of how best to operate a detention facility, ’” but should reflect “the evolving standards of decency that mark the progress of a maturing society, ” which the Tenth Circuit has characterized as a “lofty standard.” DeSpain v. Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S. 337, 351 (1981)). To prevail on his claim that Mr. Bishop violated the Eighth Amendment, plaintiff must show that (1) objectively, the harm he ...

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