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Custard v. Balsick

United States District Court, D. Colorado

January 13, 2017

BOB ALLEN CUSTARD, Plaintiff,
v.
BALSICK, et al., Defendants.

          ORDER AND RECOMMENDATION

          Craig B. Shaffer United States Magistrate Judge.

         The court has before it the Defendants'[1] motion (doc. #44) to dismiss Plaintiff Bob Custard's amended complaint, doc. #9 (referred to as the Amended Complaint or “AC”). The court also has before it Plaintiff's motion (doc. #76) for a ruling on the motion to dismiss. Pursuant to the Order Referring Case dated January 22, 2016 (doc. #21) and the memorandum dated April 6, 2016 (doc. #45), this matter was referred to the Magistrate Judge. For the following reasons, the court recommends that the Defendants' motion to dismiss be granted in part and denied in part. Plaintiff's motion for a ruling is denied as moot.

         BACKGROUND

         In his Amended Complaint (doc. #9) filed on November 12, 2015, Plaintiff - a pro se prisoner in the custody of the Bureau of Prisons at the United States Penitentiary Administrative Maximum (“ADX”) - sued numerous prison officers, prison medical staff, the Federal Bureau of Prisons (“BOP”), and the United States. In an Order dated January 22, 2016, Judge Lewis T. Babcock dismissed several claims as frivolous under D.C.Colo.LCivR 8.1 and 28 U.S.C. § 1915A. Doc. #19. Plaintiff's claims that survived that order are as follows:

Claim

Legal Theories

Defendants

1: Plexiglas incident

Excessive force - Eighth Amendment

Delay in medical care - Eighth Amendment

Balsick

Balsick, Melvin, MacGrath, Haygood

2: Chemical gas incident

Excessive force - Eighth Amendment

Denial in medical care - Eighth Amendment

Retaliation - First Amendment

Martin; Does 1-10

Osagie; Santini

Martin, Does 1-10; Osagie and Santini in their official capacities for declaratory and injunctive relief.

3: Cell 208 shower

Indifference to serious risk of harm - Eighth Amendment

Delay in medical care - Eighth Amendment

Retaliation - First Amendment

Melvin, Martin, MacGrath, Hess, Belter, McMullen, Behle, Espinosa

Osagie

Martin, Melvin, Hess, Belter, Behle, Espinosa, and MacGrath in their official capacities for declaratory and injunctive relief.

[4]: Declaratory and injunctive relief

Associated with the constitutional claims

BOP

[5]: Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674

Torts under Colorado law associated with the constitutional claims

United States

         Each of the Eighth Amendment claims against the prison officers seeks damages in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971). Relevant to Claims 2 and 3, the court takes judicial notice pursuant to Federal Rule of Evidence 201 that in one of his other pending cases, Custard v. Armijo, et al., Civ. 15-448-REB-CBS, Mr. Custard brought quite similar allegations from his April 2014 stay in SHU.[2] In that case, Mr. Custard alleged among other things, second-hand chemical gassing, a dangerous condition and injury resulting from jagged shower welds and a slippery floor; being falsely labeled a “snitch;” and FTCA liability for failure to provide adequate medical care. Armijo, Civ. 15-448, Doc. # 72 at pp. 9, 12, 15 (Recommendation of this court dated February 10, 2016), adopted, Doc. #75. In light of the similarities, the court takes significant guidance from the recommendation and orders in Armijo.

         ANALYSIS

         I. Legal Standards for Federal Rule of Civil Procedure 12(b)(6) Motions to Dismiss

         Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.”

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.” … A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ... The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Well-pled factual assertions are accepted as true at this phase; conclusory assertions are not. Iqbal, 556 U.S. at 679. In the Tenth Circuit, the Twombly/Iqbal standard

is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or formulaic recitation of the elements of a cause of action, which the Court stated will not do. In other words, Rule 8(a)(2) still lives.... Under Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the ground upon which it rests.

Pueblo of Jemez v. United States, 790 F.3d 1143, 1172 (10th Cir. 2015) (internal brackets omitted). “Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Pueblo of Jemez, 790 F.3d at 1172. The court must construe the fact allegations and any reasonable inferences from them in the light most favorable to the non-moving party. Sanchez v. Hartley, 810 F.3d 750, 754 (10th Cir. 2016). “Thus, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.” Id. at 756 (quoting Twombly, 550 U.S. at 556). However,

[n]owhere in the law does context have greater relevance to the validity of a claim than prisoner civil-rights claims. … [A] prisoner claim will often not be plausible unless it recites facts that might well be unnecessary in other contexts. For example … a prisoner claim may not be plausible unless it alleges facts that explain why the usual justifications for the complained-of acts do not apply.

Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010).

         Because Plaintiff is proceeding pro se and is not an attorney, his “pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[I]f the court can reasonably read the pleadings to state a claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. But the court also cannot be a pro se litigant's advocate, and “[p]ro se status ‘does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil … Procedure.'” Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008).

         The pro se plaintiff must provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3 F.Supp.2d 673, 675 (E.D. N.C. 1998), aff'd, 161 F.3d 5 (4th Cir. 1998). The court cannot “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor may a plaintiff avoid dismissal by alluding to facts that have not been alleged, or by suggesting violations that have not been pled. Associated Gen. Contractors of Cal. Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Except for matters suitable for judicial notice and certain exceptions inapplicable here, “[g]enerally, the sufficiency of a complaint must rest on its contents alone.” Gee, 627 F.3d at 1186.[3]

         II. Identification of and Service to Defendants John Does 1-10, MacGrath and Haygood

         The court begins its analysis with the Defendants who have not been served. Defendants argue that the individuals named only anonymously as John Does should be dismissed under Rule 12(b)(5) for failure to identify and serve them within the 90 days provided by Rule 4(m). Doc. #44 at p. 8. The Tenth Circuit recognizes that there is no provision in the Federal Rules of Civil Procedure for naming of fictitious or anonymous parties in a lawsuit. Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir. 1984); Coe v. U.S. Dist. Court, 676 F.2d 411, 415 (10th Cir. 1982). Yet as Judge Blackburn held in this case, many courts permit

bring[ing] an action against unknown John Doe defendants, but plaintiff must substitute named defendants for those unknown defendants after the completion of discovery. … [W]here the identity of alleged defendants will not be known prior to the filing of a complaint . . . plaintiff should be given an opportunity through discovery to identify the unknown defendants. This obligation is coextensive with plaintiff's burden under Fed.R.Civ.P. 4(m) to effectuate proper service.

         Doc. #38 at p. 2 (February 25, 2016 order, quotation marks omitted).

         Unless Plaintiff shows good cause for an extension, he must complete personal service to each Defendant within the time permitted by Rule 4(m): presently, 90 days after filing the complaint, and at the time that Plaintiff filed his complaint, 120 days. Fed.R.Civ.P. 4(m). Plaintiff filed the amended complaint on November 12, 2015. Doc. #9. Even measuring Rule 4(m)'s time period from the date that Judge Babcock completed the initial review under 28 U.S.C. § 1915A (January 22, 2016), that time period passed on May 23, 2016.

         Plaintiff has not sought an extension of time to identify and serve the Doe Defendants. In his response, Plaintiff includes in a single sentence that he “moves [the] court [to] order service of complaint on” the Doe Defendants. Doc. #56 at p. 22. “A motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” D.C.COLO.LCivR 7.1(d). The court also already denied Plaintiff's earlier request to order service to the Does as “premature before the John Doe Defendants are identified. The court and Defendants are not required to deduce the identity of John Doe Defendants from the limited information that is currently in the record.” Doc. #34.

         As Judge Blackburn noted, “Plaintiff appears to believe that it is the court's obligation to identify unnamed John Doe defendants. It is not.” Doc. #38 at p. 2. “A plaintiff must cooperate with the Marshals Service and take reasonable steps to identify the defendant by name and address so that service can be accomplished.” Nichols v. Schmidling, No. 10-2086-JAR, 2012 WL 10350, at *2 (D. Kan. Jan. 3, 2012), aff'd sub nom. Nichols v. Kan. Dep't of Corr., 503 F.App'x 573 (10th Cir. 2012). Because he is not proceeding in forma pauperis, [4] Plaintiff's responsibility to identify the Defendants is greater than in most pro se cases. York v. Fed. Bur. Of Prisons, No. 07-cv-01297-EWN-KLM, 2008 WL 2410416, at *1-2 (D. Colo. June 11, 2008) (“As Plaintiff is neither proceeding in forma pauperis nor a seaman, the decision whether to order the U.S. Marshal to serve the Summons and Complaint is left to the sound discretion of the Court, ” citing Fed.R.Civ.P. 4(c)(3); Brewer v. Ray, 181 F. App'x 563, 566 (7th Cir. 2006)). Here, the court authorized service by the Marshals, but “it is generally Plaintiff's burden, not Defendant BOP's, to provide sufficient identifying information for the U.S. Marshal to serve” the defendants. Id.

         Despite Plaintiff's responsibility to identify each Defendant, the court has no record of Plaintiff having taken any steps to discover the Doe Defendants' identities and serve them. There is no record of Plaintiff issuing early requests for documents (Fed. R. Civ. P. 26(d)(2) and 34(b)(2)(A)), developing a discovery plan (Rule 26(f)), or requesting a scheduling order.[5] Rule 4(m)'s 120 days have long since passed. However,

even if good cause is not shown, a court has discretion under Rule 4(m) to extend the time allowed for service of process. * * * The Tenth Circuit has cautioned that a district court should not dismiss a pro se plaintiff's complaint for failure to effect proper service without first providing … specific instructions on how to correct the defects in service.

Nichols, 2012 WL 10350, at *2 (footnote omitted, citing Olsen v. Mapes, 333 F.3d 1199, 1204-05 (10th Cir. 2003)). The court permits Plaintiff 60 days from Judge Blackburn's ruling on any objections to this order (or if there are no objections, then within 60 days of the objections deadline passing), in which to discover the Doe Defendants' identities and file a motion to amend the AC to name them. If after this time period Plaintiff fails to allege sufficient facts to identify these individuals or to show good cause for delay in serving them, Defendants may renew their motion. See, e.g., Allen v. Zavaras, 483 F.App'x 411, 412 n.1 (10th Cir. 2012); Jones v. Mozer, No. 11-cv-02189-PAB-MEH, 2012 WL 3778333, at *1 n.1 (D. Colo. Aug. 30, 2012).

         Defendants also argue that Plaintiffs' claims against Mr. MacGrath should be dismissed because the docket does not reflect timely service to him. Doc. #44 at p. 8. BOP was “unable to identify” this defendant. Doc. #36 at p. 2; Doc. #44 at p. 8. Plaintiff responds that regardless of whether he spelled the name correctly, BOP should check other spellings and asserts that he has “more than sufficiently identified” this defendant by his conduct and statements on a particular date. Doc. #56 at p. 21. BOP “checked for alternative spellings.” Doc. #61 at p. 2. As with the Does, Plaintiff has not sought an extension of time to identify and serve MacGrath. In his response, Plaintiff instead requests an order that BOP's staff attorney Clay Cullen Cook shall identify and serve MacGrath. Doc. #56 at p. 21. Again, it is Plaintiff's responsibility to do so, not BOP's. Nonetheless, for the same reason as with the Does, the court permits Plaintiff the same time period as for the Does, in which to identify the individual whom he named as MacGrath and provide sufficient information to enable the Marshals to serve him.

         Defendants further argue that the claims against Mr. Haygood should be dismissed for Plaintiff's failure to serve him. Haygood has retired from BOP. Doc. #36 at p. 2, Doc. #44 at p. 8. Plaintiff must still serve Haygood, but “security concerns … arise when prisoners have access to the personal addresses of former or current prison employees.” Leek v. Thomas, No. 09-3036-SAC, 2009 WL 2876352, at *2 (D. Kan. Sept. 2, 2009) (quotation marks omitted). Within 10 days of this order, BOP shall file Haygood's last known address as Level 3 restricted (i.e., restricted such that only the court will have access) for the Marshals to attempt service.

         III. Claim One: Plexiglas Incident.

         In Claim One, Plaintiff asserts that Balsick violated the Eighth Amendment's protection against “cruel and unusual punishments” by using excessive force, and that Balsick, Melvin, MacGrath, and Haygood violated the Eighth Amendment by deliberate indifference to serious medical needs that arose from that use of force. As the court has summarized previously, Plaintiff alleges that

[O]n March 9, 2015, while he was reviewing his personal property in the presence of Defendants Balsick and MacGrath, he pointed out that the Defendant were not wearing BOP-required name tags and that MacGrath was smoking inside a federal building. The Defendants responded by “screaming” at Plaintiff that they were now “at war” with him. (ECF No. 9 at 8). Defendant Balsick then began to hit his nightstick against a plexiglas partition, breaking it apart and “sending small sharp pieces of the plexiglas into [Plaintiff's] eyes, . . . nose & mouth, ” causing his right eye to bleed. (Id.). When Mr. Custard then took a piece of the shard out of his eye and attempted to hand it to Balsick through the plexiglas wall slot, the Defendant “slammed the heavy slot shut on [Plaintiff's] left hand, ” breaking bones in two of Plaintiff's fingers, and lacerating a third. (Id.). Defendants Balsick and MacGrath laughed hysterically at Plaintiff's injuries, and told Plaintiff that they hoped “[he] lost the two fingers” and “that's what happens when you f---with us.” (Id. at 9). Defendants Balsick and MacGrath instructed the medical department not to treat the Plaintiff's injuries, and Defendant Osagie, a physician's assistant, thereafter refused to provide Plaintiff with any medical treatment for 30 days after the incident. (Id.).
Mr. Custard further alleges that when he reported the assault to Defendant Melvin, an ADX Lieutenant, Melvin responded “I am not going to do a darn thing! Don't piss them off and they won't beat you up.” (Id.). Defendant Haygood, an ADX counselor, told Mr. Custard that he should stop filing lawsuits and grievances if he did not want to get beat up. (Id.). Defendants Melvin and Haygood also refused to contact medical staff to treat Plaintiff's injuries.
Mr. Custard asserts that Defendants Balsick, MacGrath, Haywood and Melvin … violate[d] his First Amendment right to be free from unlawful retaliation, his Eighth Amendment right to be free from the use of excessive force, and his Eighth Amendment right to receive adequate medical care.

         Doc. #19 at pp. 2-3. The court first addresses the alleged excessive force and then the alleged deliberate indifference to a serious medical need.

         A. Excessive Force

         “The use of excessive force by jail officials violates a prisoner's rights under the Eighth Amendment's Cruel and Unusual Punishments Clause when the prisoner is subjected to an ‘unnecessary and wanton infliction of pain.'” Miller v. Glanz, 948 F.2d 1562, 1566 (10th Cir. 1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). The court's inquiry must focus on whether force was applied in a good faith effort to maintain or restore discipline, see, e.g., Mitchell-Pennington v. McGovern, No. 09-3106-SAC, 2009 WL 1938979, at *3 (D. Kan. Jul. 6, 2009) or “whether the force applied was excessive under the circumstances, or malicious and sadistic.” Merritt v. Hawk, 153 F.Supp.2d 1216, 1224 (D. Colo. 2001). Cf. Marshall v. Milyard, 415 F. App'x 850, 852 (10th Cir. 2011) (observing that “[a]n action by a prison guard may be malevolent yet not amount to cruel and unusual punishment”); Pena v. Greffet, 108 F.Supp.3d 1030, 1033 (D. N.M. 2015) (“The Eighth Amendment does not require officers to use the minimum force necessary or even reasonably proportional force, but, rather, it requires only that they refrain from ‘malicious and sadistic' violence, and that they direct their efforts to achieving a sincere penological end, ” quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). The court's Eighth Amendment analysis must take into consideration the highly-charged prison environment. See Sampley v. Ruettgers, 704 F.2d 491, 496 (10th Cir. 1983) (recognizing that in maintaining control of inmates, a prison guard often is called upon to “make instantaneous, on-the-spot decisions concerning the need to apply force without having to second-guess himself”).

         “Ordinarily, an excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials act[ed] with a sufficiently culpable state of mind.” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (internal quotation marks and citation omitted). Cf. Snyder v. Spilde, 15-cv-02169-GPG, 2016 WL 1059612, at *2 (D. Colo. Mar. 17, 2016).

         The objective prong of the excessive force analysis “is contextual and responsive to contemporary standards of decency.” Whitington v. Sokol, No. 06-cv-01245-PAB-CBS, 2009 WL 2588762, at *8 (D. Colo. Aug. 18, 2009) (quoting Hudson, 503 U.S. at 6-7). The law recognizes that a prison guard's use of force against a prisoner does not always constitute a constitutional violation. Sampley, 704 F.2d at 494. Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9 (citation omitted). The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, “provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotes and citation omitted). A plaintiff is not required to sustain either serious or significant injuries to satisfy the objective component of an Eighth Amendment excessive force claim. See Hudson, 503 U.S. at 9. Cf. Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992) (the constitutional inquiry is on whether the infliction of pain was unnecessary and wanton).

This is not to say that the absence of serious injury is irrelevant to the Eighth Amendment inquiry. [T]he extent of injury suffered by an inmate is one factor that may suggest ‘whether the use of force could plausibly have been thought necessary in a particular situation. The extent of injury may also provide some indication of the amount of force applied.

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (internal quotation marks and citations omitted).

         The subjective element of the excessive force analysis asks whether the defendant had a sufficiently culpable mind. This element focuses “on whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.” Webb v. Sterling Correctional Officer Delaney, No. 14-cv-1461-RBJ-CBS, 2016 WL 931218, at *3 (D. Colo. Mar. 11, 2016) (citing Smith, 339 F.3d at 1212). “Whether pain is wantonly and unnecessarily inflicted depends, at least in part, on whether force could have plausibly been thought to be necessary to maintain order in the institution and to maintain the safety of the prison personnel or inmates.” Whitington, 2009 WL 2588762, at *8 (quoting Hickey v. Reeder, 12 F.3d 754, 758 (8th Cir. 1993)).

         In deciding whether the use of force was necessary or instead was wanton, a court must consider “the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Jackson v. Austin, 241 F.Supp.2d 1313, 1318 (D. Kan. 2003) (citation omitted). The use of force is justified when there is a concern for the safety of the institution, the guards, and the inmates. See Hickey, 12 F.3d at 759; see also Whitley, 475 U.S. at 320 (prison officials may use reasonable force in good faith to “maintain or restore discipline”).

         Here, even taken in the light most favorable to Plaintiff, as required, the allegations fail to state a claim for relief as to the shattering of the plexiglas barrier. Plaintiff alleges that behind the plexiglas barrier, he was unchained. AC at p. 6. He further alleges that the barrier was “otherwise unbreakable thick plexiglas.” Id. at p. 8. Balsick was the officer responsible for reissuing personal property to Plaintiff and had to “open canvas bags ... and record items as he handed it thru the hinged slot.” Id. at p. 7. Plaintiff was “unfamiliar with Balsick - I kept forgetting or mispronouncing his name - which aggravat[ed] him.” Id. Plaintiff does not allege any reason that he would need to repeatedly use the guard's name during this task. Plaintiff alleges that he replied to Balsick's aggravation, stating ‘because you are violating BOP policy by not wearing a nametag.'” Id. Balsick then “began to scream” at Plaintiff. Id. When Defendant MacGrath appeared, Plaintiff further “factually pointed out that” the guards were “not wearing BOP required nametags [and] both were out of uniform.” Id.

         The context that Plaintiff alleges is thus a guard in a maximum security facility attempting to complete a property review that required Plaintiff's attention to the task. Plaintiff instead focused his attention on the guards' apparel, Balsick's name, and MacGrath's smoking. AC at pp. 7-8. In this context, Balsick's striking and shattering the plexiglas barrier in front of Plaintiff does not meet the objective prong of this claim. The force was de minimis - it was not directed to Plaintiff's person, plausibly could be thought necessary to refocus Plaintiff on the task at hand, and is not of a sort repugnant to the conscience of mankind. See, e.g., McMiller v. Wolf, No. 94-cv-0623E(F), 1995 WL 529620, at *2-3 (W.D.N.Y. Aug. 28, 1995) (“Wolf is merely accused of snatching the plaintiff's mirror, breaking it against the cell bars and thereby lacerating the plaintiff's finger. … To consider the plaintiff's claim as a species of constitutional claim degrades the magnificent document under which the claim is asserted”). Plaintiff's allegations stand in stark contrast to cases in which the Tenth Circuit has found an officer's shattering of glass supported a plausible excessive force claim. See, e.g., Davis v. Clifford, 825 F.3d 1131, 1134 (10th Cir. 2016) (allegedly shattering car window, pulling unarmed misdemeanor arrestee through the broken window by her arms and hair, and pinning her facedown in the broken glass, which allegedly caused plaintiff to suffer an anxiety attack requiring a hospital trip, presented fact issues for excessive force claim).

         Moreover, as Wilkins states, the extent of the alleged injury is also relevant to whether the force could plausibly be thought necessary and the amount of force used. Here, the only injury that Plaintiff alleges from the plexiglas shattering was that it “sen[t] small sharp pieces of that plexiglas into my eyes (even over the top of my eyeglasses) and nose and mouth.” AC at p. 8. He alleges that he was able to remove the shard from his eye; he does not allege a need for medical care, serious pain, or any lasting effects from the shards of plexiglas. These facts are similar to the minor injuries caused by force that courts have found de minimis. See, e.g., Marshall, 415 F. App'x at 853 (bruised arm from guard digging in his fingernails) and Perrian v. Coons, No. 13-cv-02951-KLM, 2015 WL 1539022, at *12 (D. Colo. Mar. 31, 2015) (cut on wrist without swelling). Contrast Hall v. Donhue, No. 3:07-CV-146 RM, 2007 WL 2609853, at *2 (N.D. Ind. Sept. 5, 2007) (excessive force claim survived Rule 12 in part because the plaintiff alleged “this officer did punch the glass window out of anger causing me a serious eye injury, a cut on my nose and intense pain”). In short, Balsick's shattering of the plexiglas barrier in context is a de minimis use of force that does not support an excessive force claim.[6]

         As for Balsick's allegedly slamming the slot door on Plaintiff's hand, Plaintiff plausibly states a claim. Plaintiff alleges that Balsick's striking of the barrier caused the plexiglas to

crumble/shred apart where attached to (bolted to) the metal tubular support column- sending small sharp pieces of that plexiglas into my eyes (even over the top of my eyeglasses) and nose & mouth. … I showed both [guards] blood from my right eye and they again laughed hysterically again. Balsick stated “Let me see that [plexiglas shard from my eye].” And when I handed one of those plexiglas sharp shards to Balsick thru the plexiglas wall partition slot - Balsick maliciously & intentionally slammed the heavy slot shut on my left hand! Breaking bones in the 4th & 5th fingers and two deep to the bone lacerations on 5th finger.

         AC at p. 8. Defendants allegedly saw the “severe injuries” to Plaintiff's fingers, laughed, and said among other things that they were “glad we f-d you up, ” hoped Plaintiff would lose the fingers, and “that's what happens when you f- with us.” Id. at p. 9.

         On the one hand, Balsick's slamming of the slot door on Plaintiff's hand could be consistent with a “good faith effort to maintain or restore discipline, ” Hudson, 503 U.S. at 6. Plaintiff alleges the shard that he “handed” to Balsick was “sharp.” AC at p. 8. Regardless that it was “small, ” any sharp object is a legitimate security concern in a prison. Cf., Hall, 935 F.2d at 1113 (discussing legitimate safety interest in prison regulations prohibiting prisoners from possessing any sharp objects that could be used as weapons). Plaintiff does not allege that Balsick instructed him to hand the shard to him, but only to let him see it, i.e., put it through the slot. From Plaintiff's allegations, immediately after “aggravating”[7] the guard to shatter the plexiglas such that it “shred apart” at the “metal tubular support, ” Plaintiff attempted to hand a sharp and apparently still bloody piece of it directly into the guard's hand. On the other hand, assuming Plaintiff's allegations are true and giving reasonable inferences, Plaintiff alleges that he did so because Balsick ordered him to give him the shard. The extent of Plaintiff's alleged hand injury (two fractured fingers and lacerations “to the bone” of his pinky finger that continued to bleed 2 hours later, AC at p. 10) also suggests more force was used than would be necessary if the guard's intent were simply to stop Plaintiff from continuing to move his hand through the slot, or to make him lose his grip on the shard.

         Although “it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely, ” Sanchez, 810 F.3d at 756, Plaintiff's claim that Balsick slammed the slot door on Plaintiff's fingers only to wantonly inflict pain without a legitimate penological purpose is better addressed at a later stage. See, e.g., Escobar v. Zavaras, No. 97-1303, 149 F.3d 1190 (Table), 1998 WL 314303, at *3 (10th Cir. June 2, 1998) (unpublished opinion) (fact issue precluded summary judgment on excessive force claim alleging that guard deliberately slammed slot door and broke prisoner's finger); Whitington, 2009 WL 2588762, at *10; Banks v. Cty. of Westchester, 168 F.Supp.3d 682, 685-86, 689-91 (S.D.N.Y. 2016) (claim that prison guard allegedly smashed prisoner's hand against steel cell door, fracturing finger and requiring surgery, survived Rule 12).[8] “The allegations may be improbable, but they are not implausible.” Gee, 627 F.3d at 1189.

         B. Deliberate Indifference to Serious Medical Needs: Delay in Treating Fractured and Lacerated Fingers

         Turning to the claim of deliberate indifference in delaying medical care for Plaintiff's hand, “the 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) (internal quotation marks 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 … 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) (quoting Estelle).

         “The test for constitutional liability of prison officials [for denying or delaying medical care] 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, 511 U.S. at 834). “[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).

         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. Under this type of deliberate indifference, an assertion of negligence or medical malpractice does not give rise to a constitutional violation. Perkins v. Kan. Dept. of Corr., 165 F.3d 803, 811 (10th Cir. 1999). See also Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (“‘an inadvertent failure to provide adequate medical care' does not rise to a constitutional violation, ” quoting Estelle, 429 U.S. at 105-06). A prisoner's disagreement with medical personnel over the course of his treatment also does not state a claim. Perkins, 165 F.3d at 811.

         The second type of deliberate indifference 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). A prison 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 ...


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