United States District Court, D. Colorado
NOE M. SANTA MARIA, #68945079, Plaintiff,
MR. J. OLIVER, USP FLX WARDEN, DR. ALLRED D. DO USP FLX MED. DPT., DR. B. CINK, PA-C USP FLX MED. DPT., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on Defendants' Motion to Dismiss. (Doc. No. 16, filed Oct. 14, 2014.) For the following reasons, the court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED.
The following facts are taken from Plaintiff's Prisoner Complaint, filed August 5, 2014. (Doc. No. 1.) Plaintiff is an inmate with the United States Bureau of Prisons ("BOP") currently incarcerated at the United States Penitentiary ("USP") in Florence, Colorado.
At a prior BOP institution, Plaintiff was prescribed 600 or 800 milligrams of ibuprofen for lower back pain. (Compl. at 3.) Although Plaintiff asserts that he has had this lower back pain for about 10 years, he does not specify a particular diagnosis or cause of this pain. (Id. )
In May 2013, Plaintiff was transferred to USP. (Id. at 4.) Plaintiff maintains that the prior BOP institution shipped an unspecified amount of 600 milligram ibuprofen to USP for his use. (Id. at 3.) However, upon arriving at USP, Defendant Cink, a physician assistant at USP,  interviewed Plaintiff and allegedly "interfered" with Plaintiff's ibuprofen prescription. (Id. at 4.)
In July 2013, Defendant Allred, a doctor at USP, saw Plaintiff and, without taking any X-rays or conducting any other medical procedure, told Plaintiff "I think you need to get out of chronic care clinic and you will not be prescribed any medication as longer [sic] as I am in charge of this [medical department]." (Id. ) Plaintiff subsequently sent a "cop out" to Defendant Oliver, the USP Warden, who did not respond. (Id. )
Over a year after Plaintiff's transfer to USP, on April 2, 2014, Defendant Cink visited Plaintiff's cell and told Plaintiff "there's nothing we can do for you." (Id. ) In July 2014, Plaintiff spoke with Defendant Oliver and explained his "current situation." (Id. ) In response, Defendant Oliver "drew his cell phone [and] asked [Plaintiff his] name." (Id. ) Plaintiff believes that Defendant Oliver intended to "put all [Plaintiff's] dates on his phone." (Id. )
Sometime thereafter, Plaintiff discussed his medical issues with his case manager, Mr. Sanchez. (Id. ) Mr. Sanchez then spoke with a woman in the USP medical department who informed Mr. Sanchez that Plaintiff had been placed "on list." (Id. ) It appears that at the time Plaintiff filed his Complaint, he still had not received a prescription for ibuprofen or other treatment for his back pain. ( See id. )
Based on the facts recited above, Plaintiff's Complaint asserts a single claim for relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),  for violations of the Eighth Amendment's prohibition on cruel and unusual punishment. Defendants' Motion to Dismiss argues that Plaintiff's Complaint is properly dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff did not file a response to Defendants' Motion to Dismiss. Accordingly, this matter is ripe for the court's review and recommendation.
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not ...