United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
Dr. George Santini, Larry Hutson, Hector Lozano, and
Williamson seek to dismiss Plaintiff Steven Bradley
Jones' claims against them pursuant to Federal Rule of
Civil Procedure 12(b)(6). According to Defendants, Mr.
Jones' claims for deliberate indifference to medical
needs and First Amendment retaliation do not allege
sufficient facts to establish a constitutional violation. The
Court finds that Defendants are entitled to qualified
immunity on Mr. Jones' Eighth Amendment deliberate
indifference claim. Because the Court separately recommends
dismissing Mr. Jones' First Amendment retaliation claim
for failure to exhaust, the Court does not reach the merits
of this claim. As such, the Court recommends that
Defendants' Motion to Dismiss be granted in part and
denied in part.
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Mr. Jones in his Second Amended
Complaint, which are taken as true for analysis under
Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
November 5, 2015, Defendant Dr. Thomas Kraus prescribed Mr.
Jones an antibiotic known as “Ciprofloxacin.” Am.
Compl. 4, ECF No. 21. After Mr. Jones consumed the antibiotic
for fourteen days, he began noticing adverse reactions to
soap, deodorant, and toothpaste. Id. Specifically,
Mr. Jones experienced “painful, itchy, burn-like
lesions upon [his] face, hands, upper and underarms.”
Id. at 5.
March 2016, Mr. Jones reported the issue to health services
staff and requested to have his condition reviewed by a
dermatologist. Id. at 3, 22. Although Mr. Lozano
denied Mr. Jones' request to see a dermatologist, he
referred Mr. Jones to the sick call protocol. Id. at
5. Mr. Jones has discussed his condition with Mr. Lozano on
at least five separate occasions. Id. at 4. While
standing in the meal line on July 7, 2017, Mr. Jones informed
Mr. Lozano that he was not receiving proper treatment through
the sick call protocol. Id. Mr. Lozano told Mr.
Jones that he had a bad attitude about the situation.
three separate occasions, Mr. Jones also visited Mr. Hutson,
the Health Service Administrator. Id. During the
first visit, Mr. Hutson referred Mr. Jones to Dr. Santini,
who prescribed a steroid. Id. The prescription did
not improve Mr. Jones' condition. Id. During the
second and third visits, Mr. Hutson referred Mr. Jones to the
sick call protocol and denied Mr. Jones' request for
referral to a dermatologist. Id. On January 4, 2017,
Mr. Jones visited Dr. Santini for a second time. Id.
at 21. Dr. Santini prescribed a bethamethasone dip ointment.
Jones also alleges that Mr. Williamson confiscated his cane
on April 15, 2017. Id. at 5. According to Mr. Jones,
a Bureau of Prisons (“BOP”) employee against
which Mr. Jones had filed a tort claim asked Mr. Williamson
to take away the cane. Id. On July 7, 2017, Mr.
Lozano allegedly told Mr. Jones, “it's your
attitude about this situation that got your cane taken
result of these factual allegations, Mr. Jones filed a Writ
of Mandamus with this Court on May 19, 2017. ECF No. 1. In a
Second Amended Complaint filed on August 18, 2017, Mr. Jones
asserts two claims for relief against the moving Defendants.
Am. Compl. 4-5, ECF No. 21. First, Mr. Jones contends
Defendants Santini, Lozano, and Hutson acted with deliberate
indifference to his medical needs when they refused to refer
him to a dermatologist and otherwise provided ineffective
treatment for his skin condition. Id. at 4. Second,
Mr. Jones asserts Defendants Williamson and Lozano violated
his First Amendment rights when they confiscated his cane in
retaliation for filing a tort claim. Id. at 5.
October 27, 2017, Defendants filed the present Motion to
Dismiss, ECF No. 41. With regard to Mr. Jones' deliberate
indifference claim, Defendants contend Mr. Jones did not
suffer an objectively serious medical need, and regardless,
Mr. Jones does not allege that Defendants failed to take
reasonable measures to abate a known risk of harm.
Id. at 11-16. Furthermore, Defendants contend they
are entitled to qualified immunity, because their conduct did
not violate clearly established law. Id. at 16.
Next, Defendants argue that Mr. Jones' First Amendment
claim fails as a matter of law, because the Court should not
imply a First Amendment Bivens remedy. Id.
at 5-9. Furthermore, Defendants contend Mr. Jones does not
allege specific facts showing they took his cane away because
of the exercise of his First Amendment rights. Id.
Lozano and Williamson separately filed a Motion for Summary
Judgment, which argues Mr. Jones failed to exhaust the
administrative remedies for his retaliation claim. ECF No.
42. The Court separately recommends granting Defendants'
Motion for Summary Judgment.