United States District Court, D. Colorado
ORDER AND RECOMMENDATION
B. Shaffer United States Magistrate Judge.
court has before it the Defendants' 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
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:
1: Plexiglas incident
Excessive force - Eighth Amendment
Delay in medical care - Eighth Amendment
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
Martin, Does 1-10; Osagie and Santini in their
official capacities for declaratory and injunctive
3: Cell 208 shower
Indifference to serious risk of harm - Eighth
Delay in medical care - Eighth Amendment
Retaliation - First Amendment
Melvin, Martin, MacGrath, Hess, Belter, McMullen,
Martin, Melvin, Hess, Belter, Behle, Espinosa, and
MacGrath in their official capacities for
declaratory and injunctive relief.
: Declaratory and injunctive relief
Associated with the constitutional claims
: Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2674
Torts under Colorado law associated with the
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. 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
Legal Standards for Federal Rule of Civil Procedure 12(b)(6)
Motions to Dismiss
12(b)(6) states that a court may dismiss a complaint for
“failure to state a claim upon which relief can be
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
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
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.
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).
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.
Identification of and Service to Defendants John Does 1-10,
MacGrath and Haygood
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
#38 at p. 2 (February 25, 2016 order, quotation marks
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.
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.
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,  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.
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. Rule 4(m)'s 120 days have long since
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).
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.
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.
Claim One: Plexiglas Incident.
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
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
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
#19 at pp. 2-3. The court first addresses the alleged
excessive force and then the alleged deliberate indifference
to a serious medical need.
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”).
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).
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
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (internal
quotation marks and citations omitted).
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)).
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
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.”
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
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.
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
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.
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” 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.
“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
“The allegations may be improbable, but they are not
implausible.” Gee, 627 F.3d at 1189.
Deliberate Indifference to Serious Medical Needs: Delay in
Treating Fractured and Lacerated Fingers
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).
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
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.
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