United States District Court, D. Colorado
RECOMENDATION REGARDING ASSIGNMENT IN PART AND
DISMISSAL IN PART
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Amended Prisoner
Complaint, ECF No. 6 filed pro se by Plaintiff on
January 23, 2019. The matter has been referred to this
Magistrate Judge for recommendation ECF No. 8. The Court has
reviewed the filings to date. The Court has considered the
entire case file, the applicable law, and is sufficiently
advised in the premises. This Magistrate Judge respectfully
recommends that the Amended Prisoner Complaint be drawn in
part and dismissed in part as legally frivolous.
Factual and Procedural Background
Michael McGowan is a Mississippi State prisoner who currently
is incarcerated at the U.S. Penitentiary, ADX, in Florence,
Colorado. Plaintiff initiated this action by filing pro
se a Prisoner Complaint, ECF No. 1, pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and a Prisoner's
Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915, ECF No. 2. Plaintiff was granted leave to
proceed pursuant to § 1915.
Court reviewed the Prisoner Complaint and determined there
were deficiencies that needed to be addressed. Specifically,
Plaintiff was instructed to file an Amended Prisoner
Complaint. On January 23, 2019, Plaintiff filed an Amended
Prisoner Complaint. The Court must construe the Amended
Complaint liberally because Plaintiff is a pro se litigant.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). If a complaint reasonably can be read “to state
a valid claim on which the plaintiff could prevail, [a court]
should do so despite the plaintiff's failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110. However, a court should not
act as a pro se litigant's advocate. See
28 U.S.C. § 1915(e)(2)(B)(i) the Court must dismiss the
action or any claims if the claims are frivolous or
malicious. A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support
an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). Factual frivolousness includes
allegations that are “clearly baseless, ”
“fantastic, ”or “delusional.”
Merit of Claims on Initial Review
sets forth three claims. In Claim One, Plaintiff asserts that
he is being denied adequate medical treatment. ECF No.6 at 9.
Plaintiff further asserts that he has suffered severe stomach
pains since December 2005 and has been diagnosed with
Irritable Bowel Syndrome and Acid Reflux. Id. He
states that Defendants C. Huddleston, Williams, and Jones,
who are nurses, have denied him adequate medical treatment by
either destroying or not answering his sick call requests
that concern his chest pain, shortness of breath, shoulder
pain, and blood and diabetes testing. Id. Plaintiff
further asserts that on August 2, 2018, he severely injured
his shoulder. Id. Plaintiff also asserts that
subsequent to the injury he was placed in 4-point restraints
for over eighteen hours, during which Defendant Huddleston
performed medical checks but ignored Plaintiff's
complaints about the pain in his shoulder and his stomach.
Id. at 10. Plaintiff further asserts that two weeks
later he had X-rays of his shoulder and lungs, which revealed
a grade 2 separation of the AC joint in his shoulder and
nodules in both lungs. Id.
contends that Defendants Huddleston, Williams, and Jones
continue to deny or delay his medical care. Id. He
further contends that he continues to suffer pain in his
shoulder, but Defendants Huddleston, Williams, and Jones
refuse to place him on the sick call list to see a physician
assistant. Id. Plaintiff also contends that
Defendants Huddleston, Williams, and Jones told him that the
nodules are probably due to being exposed to tuberculosis,
but his tuberculosis tests are never positive, and Defendants
refuse to provide him a “treatment.” Id.
Finally, Plaintiff asserts that he continues to suffer pain
in his stomach, but Defendants Huddleston, Williams, and
Jones deny or delay any medical treatment. Id. at
10-11. Summary dismissal of Claim One as asserted against
Defendants Huddleston, Williams, and Jones would not be
proper at this time.
Claim Two, Plaintiff asserts that Defendants authorized his
placement in restraints as follows: (1) October 20, 2016, by
Defendant N. Rudd in ambulatory restraints for over ten
hours; (2) September 11, 2017, by Defendant D. Behle in a
4-point restraint for over ten hours; (3) September 12, 2017,
by Defendant D. Murton in ambulatory restraints for over ten
hours; (4) October 16, 2017 by Defendant S. Scarbrough in
ambulatory restraints for over ten hours; (5) August 3, 2018,
by Defendant D. Murton in a 4-point restraint for over ten
hours; (6) September 26, 2018, by Defendant J. Armijo in
ambulatory restraints for over ten hours; and (7) September
27, 2018, by M. Palider in ambulatory restraints for over ten
asserts that the ambulatory and four-point restraints have
caused scarring to his wrist and ankles and nerve damage to
his hands, which has resulted in constant aching in his
hands. ECF No. 6 at 12. Plaintiff further asserts that the
four-point restraints have aggravated his stomach issues,
which has resulted in severe pain lasting for days.
further asserts that Defendants N. Rudd, Behle, Murton,
Scarbrough, Armijo, and Palider were the individuals who
removed him from his cell and placed him in either 4-point or
ambulatory restraints. ECF No. 14 at 13. Plaintiff also
contends that he was placed in restraints in violation of his
due process rights, because all sanctions that impose an
atypical and significant hardship in relation to the ordinary
incidents of prison life require procedural due process.
Id. Plaintiff further asserts that Defendants'
actions were maliciously and sadistically intended to inflict
cruel and unusual punishment against Plaintiff. Id.
dismissal of Claim Two as asserted against Defendants Rudd,
Behle, Murton, Scarbrough, Armijo, and Palider would not be
proper at this time.
Claim Three, Plaintiff challenges his transfer to the BOP
from the Mississippi Department of Corrections on November
13, 2007. ECF No. 6 at 14. This is not the first time that
Plaintiff has raised this claim in this Court. Most recently,