United States District Court, D. Colorado
BILLY F. MAY, Plaintiff,
GEORGE SANTINI, and FRANK CORDOVA, Defendants.
OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
This matter comes before the court on the following motions:
(1) Plaintiff’s Motion for Summary Judgment [#14, filed Apr. 17, 2015];
(2) Defendants’ Motion to Dismiss [#23, filed June 23, 2015];
(3) Plaintiff’s Motion for Leave of Court to File a First Amended Complaint [#31, filed July 2, 2015];
(4) Defendants’ Motion to Dismiss [#32, filed July 6, 2015]; and
(5) Plaintiff’s Motion for a Hearing Regarding Sanctions for the Bureau of Prisons Retaliatory Action [#35, filed Oct. 19, 2015].
Pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated June 3, 2015 [#25], this action is assigned to the Magistrate Judge for all matters, including disposition. The court stayed discovery in this matter pending resolution of the present motions. [#28; #34]. The court has carefully reviewed of the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument will not materially assist in the resolution of these pending motions. Accordingly, the court now turns to analysis of each of the pending motions.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Billy May filed a pro se prisoner complaint in this case on February 27, 2015 while incarcerated at the Federal Prison Camp (“FPC”) in Florence, Colorado. [#1]. At the court’s direction to refile using the appropriate form, Mr. May filed an Amended Complaint on March 16, 2015, asserting claims pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [#4]. The Amended Complaint encompasses two separate claims and names as Defendants the Federal Bureau of Prisons (“BOP”), George Santini, and Frank Cordova. Defendant George Santini (“Defendant Santini” or “Dr. Santini”) is a medical doctor, and Defendant Frank Cordova (“Defendant Cordova” or “Mr. Cordova”) is a certified nurse practitioner. [#27 at 1-2]. Both individual Defendants treated Mr. May during his time at the FPC. [Id.].
Mr. May’s first claim is that due to his refusal to take the medication Ivermectin, which prison officials were administering to inmates due to a scabies outbreak, he was removed from the FPC and placed in the Special Housing Unit (“SHU”), otherwise known as the “hole, ” for 28 days. [#4 at 3]. During that time, Mr. May claims that he was denied medical treatment. [Id.]. He states that Defendants’ actions violated his constitutional rights, including his right to due process and the prohibition of cruel and unusual punishment under the Eighth Amendment. [Id. at 8, 10]. He also alleges that the BOP’s actions were not in compliance with the Supreme Court’s decision in Washington v. Harper, 494 U.S. 210 (1980), which he states prohibits involuntary administration of medication to prisoners. [Id.]. Mr. May’s second claim is that his constitutional rights were violated because Defendants Cordova and Santini refused to treat his severe allergies and provide him Benadryl and an EpiPen to counter allergy attacks. [Id. at 9]. Mr. May states that he has suffered Anaphylaxis shock three times in his life due to his allergies and has been told that if he suffers a fourth episode his survival rate without medication is only about twenty percent. [Id. at 9]. Mr. May’s requested relief includes immediate release from incarceration and damages of $10, 000 per day for each day that he was wrongfully incarcerated in solitary confinement. [Id. at 6].
On March 19, 2015, the Honorable Lewis T. Babcock entered an order to dismiss in part and to draw the case. [#7]. In that order, the court dismissed Mr. May’s claims against the BOP because any Bivens claims for damages against the BOP are barred by sovereign immunity. [Id. at 2]. In addition, the court found that any request for injunctive relief against BOP subordinate officials is impermissible, because an injunction against the individuals is essentially an injunction against the BOP to which the agency has not waived sovereign immunity. [Id.]. Accordingly, the only claims remaining in the Amended Complaint are Mr. May’s claims against Defendants Cordova and Santini, in their individual capacities. [Id.].
Mr. May filed a Motion for Summary Judgment on April 17, 2015. [#14]. He argues that he is entitled to judgment as a matter of law because the BOP violated its own written policies and standards regarding treatment of a prison who refuses to take a prescribed medication. [#14 at 3]. He alleges that there was no justification or legal basis to incarcerate him the “hole” for 28 days for refusing to take the Ivermectin medication which BOP attempted to administer to him as part of its efforts to treat a scabies outbreak at FPC. [Id.]. Defendants respond in opposition to the Motion for Summary Judgment that there is no evidence in the record to support a claim that they violated Mr. May’s constitutional rights by placing him in the Special Housing Unit as punishment for his refusal to take Ivermectin and that his placement there was in the nature of quarantine, not punishment. [#27 at 2]. They also argue that Mr. May’s claim about being denied adequate medical care because Defendants denied access to an EpiPen and Benadryl must fail because this amounts to a difference of opinions concerning medical treatment that does not rise to the level of an Eighth Amendment violation. [Id. at 6].
Defendants filed a Motion to Dismiss on June 1, 2015. [#23]. In the Motion to Dismiss, they argue that the Amended Complaint should be dismissed because Mr. May fails to allege their personal participation in the events that he claims give rise to the constitutional violations at issue in this case. In his Response to Motion to Dismiss and Reply in Support of Summary Judgment filed on July 2, 2015, Mr. May responds by including several allegations regarding Defendant Cordova’s participation and arguing that the court should grant him leave to file an amended complaint. [#30 at 1, 5]. He concurrently filed a Motion for Leave of Court to File a First Amended Complaint (“Motion to Amend”). [#31].
Through the Motion to Amend, Mr. May seeks to dismiss Dr. Santini as a Defendant and add Juan Segovia, the former administrator of the FPC, as a Defendant. [Id.]. Mr. May further states that he seeks to amend his complaint to address Defendants’ arguments in the Motion to Dismiss and plead personal participation of Mr. Cordova and Mr. Segovia. [Id.]. Mr. May also proposes amending his Amended Complaint to eliminate his second claim regarding access to Benadryl and an EpiPen and ...