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Cox v. Owens

United States District Court, D. Colorado

February 14, 2019

CHRISTOPHER COX, Plaintiff,
v.
STEVE OWENS, Warden of Colorado State Penitentiary, PHYSICIANS HEALTH PARTNERS INSUR., and RICHARD HODGE, M.D., Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on the Motion to Dismiss [#30][1] (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, [2] 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”).[3] 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 GRANTED.

         I. Summary of the Case

         Plaintiff 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”)[4] 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. 2015).

         According 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 Address [#8].

         Based 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).[5] See Order [#19] at 5. Plaintiff seeks monetary damages and injunctive relief. Am. Compl. [#18] at 3, 7.

         The 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.

         II. Standard of Review

         A. Federal Rule of Civil Procedure 12(b)(1)

         The 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 (1994)).

         A 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.

         B. Federal Rule of Civil Procedure 12(b)(6)

         The 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).

         To 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 omitted).

         C. Qualified Immunity

         Qualified 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).

         The 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).

         III. Analysis A. Eighth Amendment Claim Against Defendant Hodge in his Individual Capacity

         Defendant 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) (‚ÄúSince the [defendant] raised the defense of qualified immunity in its motion to dismiss, we first ...


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