United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on the Motion to
Dismiss [#30] (the “Motion”), filed by
Defendants Steve Owens (“Owens”) and Richard
Hodge, M.D., (“Hodge”) (collectively, the
“CDOC Defendants”). Plaintiff Christopher Cox,
who is proceeding pro se,  filed a Response [#32] in opposition to
the Motion and the CDOC Defendants filed a Reply [#33].
Plaintiff then filed a Surreply entitled “Reply in
Support of Motion in Opposition of Motion to Dismiss”
[#34] (the “Surreply”). The Motion has been referred
to the undersigned for recommendation pursuant to 28 U.S.C.
§ 636(b) and D.C.COLO.LCivR 72.1(c). See [#31].
The Court has reviewed the Motion, the Response, the Reply,
the Surreply, the entire case file, and the applicable law,
and is sufficiently advised in the premises. For the reasons
set forth below, the Court respectfully
RECOMMENDS that the Motion [#30] be
Summary of the Case
is presently incarcerated at Arkansas Valley Correctional
Facility (“AVCF”), but throughout the period
relevant to this lawsuit, he was incarcerated at Colorado
State Penitentiary (“CSP”). Am. Compl.
[#18] at 3-4; Notice of Change of Address [#8]. On
January 2, 2018, Plaintiff filed his Complaint pursuant to 42
U.S.C. § 1983 asserting claims under the Eighth
Amendment. See [#1]. On January 22, 2018, Plaintiff
filed his Notice of Change of Address [#8] indicating that he
had been transferred to AVCF. On April 9, 2018, Plaintiff
filed his Amended Complaint [#18], the operative pleading in
this case. In the Amended Complaint, Plaintiff generally
alleges that the CDOC Defendants and Defendant Physicians
Health Partners Insur. (“PHP”) violated
Plaintiff's Eighth Amendment right to receive adequate
medical care while incarcerated at CSP when Plaintiff's
hernia was treated with a hernia belt and stool softeners
rather than surgery. See [#18] at 3-5. The following
allegations of the Amended Complaint [#18] are accepted as
true for purposes of determining the Motion [#30]. See
Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir.
to Plaintiff, he “developed a hernia while incarcerated
at CSP[ ] which causes him significant pain and numbness in
his upper thigh.” Am. Compl. [#18] at 3.
Defendant Hodge, a physician at CSP, initially recommended
surgery to treat Plaintiff's hernia. Id.
However, Plaintiff alleges that Defendant Hodge ultimately
refused to perform the surgery because Defendant PHP, the
healthcare provider at CSP, has a policy which deems hernia
surgery as an elective procedure unless the hernia is
strangulated or incarcerated. Id. Plaintiff does not
allege that his hernia was either strangulated or
incarcerated. See generally Id. at 3-5. Instead of
surgery, Plaintiff began receiving treatment in the form of a
hernia belt and stool softeners in September of 2016.
Id. at 3 Plaintiff alleges that this treatment was
“ineffective to alleviate his pain and that his
condition has worsened.” Id. No facts have
been alleged concerning Plaintiff's medical treatment
since his transfer to AVCF in January of 2018. See
generally Id. at 3-5; Notice of Change of
on the facts alleged, Plaintiff asserts an Eighth Amendment
claim against all Defendants for violating his right to
receive adequate medical care. Am. Compl. [#18] at
4-5. With respect to Defendant Hodge, Plaintiff alleges that
Defendant Hodge was “involved directly in the choice to
stall necessary surgery and prolong the Plaintiff's
pain.” Id. at 4. Regarding Defendant Owens,
the Warden at CSP, Plaintiff asserts that Defendant
Owens' liability is premised on the fact that
Plaintiff's mother sent Defendant Owens a letter
concerning Plaintiff's condition which, according to
Plaintiff, gave Defendant Owens “sufficient notice to
alert him to a violation of law.” Id. at 5.
Plaintiff appears to assert his Eighth Amendment claim
against Defendants Hodge and Owens both in their individual
and official capacities. Id. at 2, 4, 5. The claim
against Defendant Owens in his individual capacity was
dismissed with prejudice on April 18, 2018, pursuant to 28
U.S.C. § 1915(e)(2). See Order [#19] at 5.
Plaintiff seeks monetary damages and injunctive relief.
Am. Compl. [#18] at 3, 7.
CDOC Defendants filed the instant Motion on June 22, 2018,
seeking to dismiss the remainder of Plaintiff's claims
against them pursuant to Fed.R.Civ.P. 12(b)(1) and
Fed.R.Civ.P. 12(b)(6). [#30] at 1. Specifically, the CDOC
Defendants argue that Plaintiff's Eighth Amendment claim
against Defendant Hodge in his individual capacity should be
dismissed on the grounds of qualified immunity and failure to
state a claim. Id. at 4-10. Further, the CDOC
Defendants argue that Plaintiff's Eighth Amendment claim
against Defendants Hodge and Owens in their official
capacities should be dismissed on the grounds of mootness.
Id. at 10-11.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1)
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); see
Fed. R. Civ. P. 12(b)(1). Statutes conferring subject matter
jurisdiction on federal courts are to be strictly construed.
F & S Constr. Co. v. Jensen, 337 F.2d 160, 161
(10th Cir. 1964). “The burden of establishing subject
matter jurisdiction is on the party asserting
jurisdiction.” Id. (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484
U.S. 986 (1987)). The Court's reliance on “evidence
outside the pleadings” to make findings concerning
purely jurisdictional facts does not convert a motion to
dismiss pursuant to Rule12(b)(1) into a motion for summary
judgment pursuant to Rule 56. Id.
Federal Rule of Civil Procedure 12(b)(6)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact ‘to state a claim to relief that is
plausible on its face.'” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 570); see also Shero v.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.
2007) (“The complaint must plead sufficient facts,
taken as true, to provide ‘plausible grounds' that
discovery will reveal evidence to support the plaintiff's
allegations.” (quoting Twombly, 550 U.S. at
570)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant[s] [are]
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A pleading that
offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement.” Id. (brackets in
original and internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][
]that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks
immunity, in certain circumstances, protects government
officials from litigation when they are sued in their
individual capacities. See, e.g., Harlow v.
Fitzgerald, 457 U.S. 800, 814-18 (1982). A government
official is entitled to qualified immunity from liability for
civil damages when his or her allegedly unlawful conduct did
not violate any of the plaintiff's statutory or
constitutional rights that (1) were “clearly
established” at the time of the conduct, and (2) would
have been known to a reasonable person in the official's
position. Harlow, 457 U.S. at 818. A government
official is entitled to qualified immunity in “[a]ll
but the most exceptional cases.” Harris v. Bd. of
Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).
threshold inquiry is whether the facts taken in the light
most favorable to the plaintiff sufficiently allege a
constitutional violation. Saucier v. Katz, 533 U.S.
194, 201 (2001). “If no constitutional right would have
been violated were the allegations established, there is no
necessity for further inquiries concerning qualified
immunity.” Id. However, “if a violation
could be made out on a favorable view of the parties'
submissions, ” a court must “ask whether the
right was clearly established.” Id.; see
also Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(holding that although qualified immunity determination
involves a two-part inquiry, if the plaintiff fails either
inquiry reviewed in any order, no further analysis need be
undertaken and qualified immunity is appropriate).
Analysis A. Eighth Amendment Claim Against Defendant Hodge in
his Individual Capacity
Hodge asserts an entitlement to qualified immunity in the
Motion, thus the Court will first examine whether
Plaintiff's Eighth Amendment claim against Defendant
Hodge in his individual capacity should be dismissed pursuant
to Fed.R.Civ.P. 12(b)(6). Butler v. Rio Rancho Pub. Sch.
Bd. Of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003)
(“Since the [defendant] raised the defense of qualified
immunity in its motion to dismiss, we first ...