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Anderson v. Colorado Department of Corrections

United States District Court, D. Colorado

August 21, 2017

TROY ANDERSON, Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS “CDOC”, RICK RAEMISCH, Executive Director, CDOC, TRAVIS TRANNI, Warden, JILL LAMPELLA, Dr., CHRIS ESTEP, Dr., and L. TAFOYA, Warden, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DOCKET NO. 23)

          Michael J. Watanabe, United States Magistrate Judge

         This 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 recommendation.

         I. BACKGROUND

         a. Relevant Facts

          The 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.

         Plaintiff 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.

         In 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 II”).

         Immediately 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.)

         On 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.)

         On 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.)

         In late 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.)

         Plaintiff's 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.)

         On 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.

         Plaintiff 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. . (Id.)

         b. Procedural History

         Plaintiff 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.

         Plaintiff 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 outdoor exercise;
(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 Estep;
(3) a 42 U.S.C. § 1983 claim for retaliation under the First Amendment against Defendants Raemisch, Tranni, Tafoya, and Estep;
(4) a claim for violation of the Americans With Disabilities Act, 42 U.S.C. § 12101) (“ADA”), against Defendant CDOC;
(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.

         Defendants request that Plaintiff's Amended Complaint be dismissed under Rule 12(b)(6) and under the doctrine of qualified immunity. (Docket No. 23.)

         II. STANDARDS OF REVIEW

         a. Pro Se Plaintiff

         Plaintiff originally proceeded pro se, and the Amended Complaint (Docket No. 21) is a pro se pleading.[1] 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) ...


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