United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS (DOCKET NO. 23)
Michael J. Watanabe, United States Magistrate Judge
case is before this court pursuant to an Order of Reference
to Magistrate Judge issued by Judge Christine M. Arguello on
September 26, 2016. (Docket No. 13.) Now before the court is
Defendants Colorado Department of Corrections, Chris Estep,
Jill Lampella, Rick Raemisch, Laura Tafoya, and Travis
Tranni's Motion to Dismiss. (Docket No. 23.) The court
has carefully considered the motion, Plaintiff's response
(Docket No. 41), and Defendants' reply. (Docket Nos. 42.)
The court has taken judicial notice of the court's file
and has considered the applicable Federal Rules of Civil
Procedure and case law. The court now being fully informed
makes the following findings of fact, conclusions of law, and
court will attempt to briefly summarize the relevant facts
contained in Plaintiff's 55-page handwritten Amended
Complaint. (Docket No. 21.) The court assumes these facts and
allegations are true for purposes of a motion to dismiss.
is a prisoner who has been confined in the Colorado
Department of Corrections (“CDOC”) since 2000.
(Id. ¶ 2.) He has been diagnosed with several
mental health issues, including attention
deficit/hyperactivity disorder, anxiety, depression,
antisocial personality disorder, intermittent explosive
disorder, and an organic brain dysfunction that affects his
ability to function on a daily basis. (Id. ¶
22.) Due to his mental illnesses, Plaintiff has been placed
in administrative segregation and restrictive housing for
indefinite periods of time, and has been incarcerated at
several different facilities, including Colorado State
Penitentiary (“CSP”), Centennial Correctional
Facility (“CCF”), Sterling Correctional Facility
(“SCF”), San Carlos Correctional Facility (SCCF),
and Fremont Correctional Facility (“FCF”), where
he currently resides.
2010, Plaintiff filed a lawsuit in this district (Case No.
2010-cv-1005-RBJ-KMT) protesting the condition of his
confinement in CSP, where he had been held in administrative
segregation for over ten years. On August 24, 2012, following
a trial to the court, Judge Jackson concluded that CSP's
failure to provide reasonable access to the out of doors and
outdoor exercise constituted a violation of Mr.
Anderson's Eighth Amendment rights. Anderson v.
Colorado, 887 F.Supp.2d 1133, 1142 (D. Colo. 2012)
(hereinafter “Anderson I”). He also
directed CDOC to appoint a physician to reexamine Plaintiff,
evaluate his mental health treatment, review his medical
records, and “take whatever steps he or she concludes
are appropriate in his or her medical judgment. This may or
may not include any medication change.” Id. at
1145. Judge Jackson ordered that Plaintiff was to have
“access for at least one hour, at least three times per
week, to outdoor exercise in an area that is fully outside
and that includes overhead access to the elements, e.g., to
sunlight, rain, snow and wind, unless inclement weather or
disciplinary needs make that impossible.” Id.
at 1157. On April 7, 2015, Judge Jackson, issued an order
denying Plaintiff's Motion to Enforce Judgment, stating
that “[a]lthough it took a while, the Court's
orders have been implemented and then
some.”Anderson v. Colo. Dep't of Corr.,
No. 10-CV-01005-RBJ-KMT, 2015 WL 1593884, at *5 (D. Colo.
Apr. 7, 2015) (hereinafter “Anderson
thereafter, Plaintiff alleges that Defendants began to
discontinue Plaintiff's successful treatment plan, over
the protests of Dr. Bryce Wilson, Plaintiff's treating
physician. (Docket No. ¶¶ 72-73.) On July 20, 2015,
Plaintiff was transferred from SCF, where he had been
receiving outdoor exercise, to CCF. He went on hunger strike
beginning on July 25, 2015 to protest the transfer and
discontinuation of his medical treatment. (Id.
¶ 76.) Defendant Estep, a licensed psychologist, was
aware of the hunger strike but did not inform any
authorities. (Id. ¶ 77.) After the hunger
strike ended eleven days later, Plaintiff was placed for five
days in what he terms a “cold cell” where lights
were always on, the temperature was cold, and noise of the
intake area made it difficult to sleep. (Id. ¶
81.) He was then moved to the infirmary for one day, before
returning to a regular cell. (Id. ¶ 82.)
August 11, 2015, Defendant Estep prepared a
“fraudulent” report that essentially reversed the
successful mental health treatment plan that had been
implemented. (Id. ¶ 84.) Plaintiff also alleges
that Defendant Estep refused to allow Plaintiff to make legal
calls, and went so far as to impersonate an attorney.
(Id. ¶¶ 79, 85.)
September 10, 2015, Plaintiff was transferred back to CSP.
(Id. ¶ 87.) He returned to harsher conditions
than those he faced prior to his earlier lawsuit.
(Id.) Defendant Tranni, the warden of both CCF and
CSP, approved the transfer, and Plaintiff was placed in
Restrictive Housing Maximum Security, even though it is
prison policy to not place seriously mentally ill prisoners
there. (Id. ¶¶ 87-88.) Throughout his stay
at CSP, Plaintiff unsuccessfully tried to obtain mental
health treatment; he was even denied a television, despite
the recommendation of Dr. Darren Lish, CDOC's Chief of
Psychiatry, that he be permitted one to distract him from
obsessive thoughts. (Id. ¶¶ 89-90.)
September 2015, Plaintiff's arm was caught in his cell
door. (Id. ¶ 90.) He was denied treatment for
his injuries for several days. (Id. ¶ 90.)
counsel sent Defendant Raemisch a letter on December 4, 2015,
expressing concerns that Judge Jackson's order was not
being complied with regarding Plaintiff's access to
direct sunlight and mental health treatment. (Id.
¶¶ 89-92.) It was ignored. (Id.)
December 11, 2015, Plaintiff was transferred to SCCF.
(Id. ¶ 94.) Plaintiff was denied bedding for
four days, a shower for a week, and legal calls for 17 days.
(Id.) He was denied all access to direct sunlight
for the entirety of his stay at SCCF, even though the
facility has outdoor recreation cages. (Id. ¶
98.) Plaintiff also had difficulty receiving appropriate
mental health treatment. He wanted a reinstatement of an
earlier, successful treatment plan created by Dr. Shepard,
but Defendant Estep's diagnoses were used instead.
(Id. ¶¶ 100-103.) He blames Defendants
Raemisch and Tafoya, the latter of whom is SCCF's warden,
for these conditions.
was transferred to FCF on August 22, 2016. (Id.
¶ 108). He has access to direct sunlight, better
conditions, and a mental health treatment plan, although he
remains concerned that it could be taken away from him again.
filed his Amended Complaint (Docket No. 23) on November 9,
2016, against six named defendants: Colorado Department of
Corrections, Rick Raemisch, Travis Tranni, Jill Lampella,
Chris Estep, and Laura Tafoya.
asserts six claims for relief:
(1) a 42 U.S.C. § 1983 claim for cruel and unusual
punishment under the Eighth Amendment against Defendants
Raemisch, Tranni, and Tafoya for their failure to provide
(2) a 42 U.S.C. § 1983 claim for failure to provide
adequate mental health treatment under the Eighth Amendment
against Defendants Raemisch, Tranni, Tafoya, Lampella, and
(3) a 42 U.S.C. § 1983 claim for retaliation under the
First Amendment against Defendants Raemisch, Tranni, Tafoya,
(4) a claim for violation of the Americans With Disabilities
Act, 42 U.S.C. § 12101) (“ADA”), against
(5) a claim for violation of the Rehabilitation Act, 29
U.S.C. § 794, against Defendant CDOC; and
(6) a 42 U.S.C. § 1983 claim for deliberate indifference
under the Eighth Amendment against Defendants Raemisch and
Tranni based on Plaintiff's injuries from the cell door
closing on his arm.
request that Plaintiff's Amended Complaint be dismissed
under Rule 12(b)(6) and under the doctrine of qualified
immunity. (Docket No. 23.)
STANDARDS OF REVIEW
Pro Se Plaintiff
originally proceeded pro se, and the Amended
Complaint (Docket No. 21) is a pro se
pleading. The court, therefore, reviews this
pleading “liberally and hold[s][it] to a less stringent
standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted). 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). 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) (court may not “supply additional factual
allegations to round out a plaintiff's complaint”);
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) ...