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McGowan v. Huddleston

United States District Court, D. Colorado

April 11, 2019

MICHAEL McGOWAN, Plaintiff,
v.
C. HUDDLESTON, ADX Nurse, JONES, ADX Nurse, WILLIAMS, ADX Nurse, A MATEVAUSIAN, Warden, J. E. KRUEGER, Regional Director, I. CONNORS, Administrator, PORCO, Unit Manager, J. COULSON, Manager, B. TORRES, Counselor, M. PALIDER, Lieutenant, J. ARMIJO, Lieutenant, S. SCARBROUGH, Lieutenant, D. BEHLE, Lieutenant, D. MURTON, Lieutenant, and N. RUDD, Lieutenant, Defendants.

          RECOMENDATION REGARDING ASSIGNMENT IN PART AND DISMISSAL IN PART

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Amended Prisoner Complaint, ECF No. 6[1] filed pro se by Plaintiff on January 23, 2019. The matter has been referred to this Magistrate Judge for recommendation ECF No. 8.[2] 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.

         I. Factual and Procedural Background

         Plaintiff 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.

         The 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 id.

         Under 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.” Id.

         II. Merit of Claims on Initial Review

         Plaintiff 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.

         Plaintiff 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.

         In Claim Two, Plaintiff asserts that Defendants authorized his placement in restraints[3] 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 hours.

         Plaintiff 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. Id.

         Plaintiff 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. at 13.

         Summary dismissal of Claim Two as asserted against Defendants Rudd, Behle, Murton, Scarbrough, Armijo, and Palider would not be proper at this time.

         In 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, Magistrate ...


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