Marquez v. Lish

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         This action arises out of the incarceration of Plaintiff Cesar Ryan Marquez (“Marquez”), an inmate at all relevant times in the Colorado Department of Corrections system. Marquez proceeds in this action pro se and alleges against the Defendant, Dr. Darren Lish (“Lish”), a violation of his Eighth Amendment right against Defendant's deliberate indifference to his serious need for medical care. In response, Lish filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) [filed November 6, 2018; ECF No. 21]. Finding that the Court lacks subject matter jurisdiction due to Marquez's lack of constitutional standing, this Court respectfully recommends that the Honorable William J. Martinez grant in part and deny in part Lish's motion as set forth herein.

         BACKGROUND

         I. Statement of Facts

         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Marquez in the operative Amended Complaint, ^[1] which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On or about February 15, 2011, Marquez began serving a nine-year term in the Colorado Department of Corrections (“CDOC”). During that same year, CDOC physicians first recognized and began treating Marquez for a mental health condition by prescribing Wellbutrin. Marquez continued with this treatment until approximately 2015 when the CDOC physicians also prescribed Gabapentin and Remron for Marquez's treatment.

         On February 24, 2017, the CDOC transferred Marquez to a community corrections program, “Time to Change, ” at which Marquez continued to be treated for his mental health condition by a CDOC contractor, Correctional Psychology Associates (“CPA”). CPA staff prescribed the same dosages of the three medications for Marquez's treatment. At some point before October 2017, CPA stopped prescribing the medications citing a CDOC policy, apparently drafted and implemented by Lish, CDOC Chief of Psychiatry, mandating that Wellbutrin, Gabapentin, and Remron be discontinued immediately due to a potential abuse hazard. Within a few days of stopping the medication, Marquez suffered a mental “breakdown” culminating in his “absconding” from the Time to Change program.

         II. Procedural History

         Based on these allegations, Marquez seeks injunctive relief in the form of an order requiring the CDOC to review his need for the above-described medications, to choose what form is to be given Marquez to reduce abuse concerns, and to place Marquez once again in the community corrections program. Am. Compl. 4, ECF No. 7.

         In the present motion, Lish contends that Marquez fails to allege the subjective and objective elements necessary to state an Eighth Amendment claim. Mot. 4-5. Marquez responds with additional allegations that he has been diagnosed with “multiple mental illnesses” by “several doctors” and was not provided any alternative medication or treatment when the medication stopped; however, the prescriptions have been re-started now that he is at the Boulder County Jail. He also contends that he was doing well in the program while on the medication, and it “was not until [he] was off [his] medications that everything started falling apart.” Resp. 3.

         Although provided the opportunity to do so, Lish did not file a reply in support of the motion.

         LEGAL STANDARDS

         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         The Supreme Court has instructed that “whenever standing is unclear, we must consider it sua sponte to ensure there is an Article III case or controversy before us.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013). Dismissal for lack of constitutional standing should be granted under Rule 12(b)(1). VR Acquisitions, LLC v. Wasatch Cty., 853 F.3d 1142, 1146 ...