United States District Court, D. Colorado
ORDER ACCEPTING MAGISTRATE JUDGE'S
RECOMMENDATION
PHILIP
A. BRIMMER Chief United States District Judge
This
matter is before the Court on the Recommendation of United
States Magistrate Judge Kristen L. Mix (“the
recommendation”) filed on April 2, 2019 [Docket No.
62]. Magistrate Judge Mix recommends that the Court grant
Defendant Amanda Wright's Motion to Dismiss [Docket No.
27] and dismiss all claims against defendant Amanda Wright
(“Wright”) without prejudice. Plaintiff filed
timely written objections. Docket No. 71.
The
Court will “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
proper if it is specific enough to enable the Court “to
focus attention on those issues - factual and legal - that
are at the heart of the parties' dispute.”
United States v. 2121 East 30th Street, 73
F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff's
pro se status, the Court reviews his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991).
Plaintiff's
claim against Wright arises out of two incidents that
occurred when he was a pretrial detainee in the Mesa County
Detention Center in Colorado. Docket No. 1 at
11-12.[1] On August 21, 2016, plaintiff sustained an
injury to his left shoulder. Id. at 11.
Approximately two hours later, plaintiff's shoulder
injury was aggravated when he was “tased.”
Id. Following the tasing, emergency medical services
ordered ice for plaintiff's shoulder injury and took
pictures of “multiple burns” on plaintiff's
back from the Taser. Id. Wright, a member of the
jail's medical staff, was present in plaintiff's cell
while emergency medical services were treating plaintiff.
Id. After emergency medical services departed,
plaintiff did not receive any further medical treatment for
his shoulder and back injuries for five days. Id. at
11-12. Plaintiff brings a claim against Wright (and other
defendants not party to this motion) under the Fourteenth
Amendment for “punishment of a pretrial detainee -
denial of medical treatment.” Id. at 11
(capitalization modified). In the recommendation, Magistrate
Judge Mix concluded that plaintiff's complaint failed to
state a claim against Wright because (1) Wright did not
personally participate in any constitutional violation
related to the five-day delay in treating plaintiff's
injuries and (2) Wright's conduct during the initial
medical examination was not deliberately indifferent to
plaintiff's medical needs. Docket No. 62 at 5-11.
Plaintiff
first objects to the magistrate judge's conclusion that
he did not adequately allege Wright's personal
participation in a constitutional violation. “In order
for liability to arise [for a constitutional violation under
42 U.S.C.] § 1983, a defendant's direct personal
responsibility for the claimed deprivation of a
constitutional right must be established.” Trujillo
v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006). The
complaint does not allege that Wright had any involvement in
the five-day delay in plaintiff receiving treatment for his
shoulder and back. See Docket No. 1 at 11-12.
Plaintiff argues that Wright's presence at the initial
medical examination is sufficient to establish her personal
participation in any constitutional violation arising out of
the five-day delay in treatment because her presence as a
“medical responder” at the initial examination
made it her “duty to make sure all necessary treatment
is provided . . . to the inmate in the incident she is
responding to.” Docket No. 71 at 2.[2] However,
plaintiff provides no case law to support this assertion.
Moreover, plaintiff has failed to assert any facts that would
indicate that Wright had any “direct personal
responsibility” to continue to provide plaintiff with
medical care after the initial examination. See
Trujillo, 465 F.3d at 1227; cf. Haden v. Green,
No. 10-cv-00515-RBJ-KMT, 2012 WL 6953295, at *8 (Aug. 30,
2012) (defendant's direct personal responsibility was not
established where evidence showed defendant “had no
authority to provide medical care to inmates or to personally
address their complaints about medical care”). The
Court perceives no reason why an allegation of presence at an
initial medical examination suffices to render Wright liable
for the alleged subsequent delay in plaintiff's
treatment. Thus, the Court agrees with the recommendation
that the complaint fails to establish plaintiff's
personal participation in the five-day delay of
plaintiff's medical treatment.
Plaintiff
next objects to the magistrate judge's conclusion that
the complaint fails to allege that Wright was deliberately
indifferent to plaintiff's medical needs. To establish an
Eighth Amendment claim for deliberate indifference, the
plaintiff must show both that he suffered a
“sufficiently serious” harm (the objective
element of a deliberate indifference claim) and that the
prison official knew of and “disregarded” an
“excessive risk” to the inmate's health (the
subjective element). See Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005); Farmer v. Brennan, 511 U.S.
825, 834, 837 (1994). The magistrate judge held that
plaintiff failed to allege facts that would establish the
subjective element - that Wright knew of and disregarded an
excessive risk to plaintiff's health. Docket No. 62 at
9-11.
The
Court agrees with the recommendation. As the magistrate judge
correctly noted, “[s]o long as a medical professional
provides a level of care consistent with the symptoms
presented by the inmate, absent evidence of actual knowledge
or recklessness, the requisite state of mind cannot be
met.” Docket No. 62 at 10 (quoting Self v.
Crum, 439 F.3d 1227, 1233 (10th Cir. 2006).
Plaintiff's complaint alleges that, while Wright was
present, (1) emergency medical services ordered ice for
plaintiff's shoulder and (2) plaintiff's back had
multiple Taser burns. Docket No. 1 at 4. First, as discussed
above, plaintiff has not made allegations that Wright
personally participated in denying or delaying
plaintiff's ice. Second, as to the Taser burns, plaintiff
fails to allege that, at the time Wright was present, his
symptoms were sufficiently severe that Wright's alleged
failure to clean and treat the burns demonstrates that she
had the “requisite state of mind” to sustain a
deliberate indifference claim. See Self, 439 F.3d at
1233. Plaintiff's complaint does not allege that he was
in any pain from the Taser burns until August 24 - three days
after his only contact with Wright. See Docket No. 1
at 12. Wright cannot be subjectively indifferent to
plaintiff's medical needs when “the symptoms
presented by [plaintiff]” while Wright was present did
not indicate that plaintiff had suffered a more serious
injury. See Self, 439 F.3d at 1233.
None of
plaintiff's arguments to the contrary are persuasive.
First, plaintiff argues that he submitted evidence that
Wright “knew of and deliberately disregarded
plaintiff's burns.” Docket No. 71 at 3. As
previously discussed, the Court will not consider evidence
not in the record before the magistrate judge. Second,
plaintiff contends that it was “mandatory” for
Wright to treat plaintiff's Taser burns to prevent
infection. Docket No. 71 at 3. The Eighth Amendment does not
protect a prisoner's “right to a particular course
of treatment.” See Callahan v. Poppell, 471
F.3d 1155, 1160 (10th Cir. 2006) (holding that the Eighth
Amendment does not redress claims for medical malpractice).
Protection against infection is a “particular course of
treatment” for plaintiff's Taser burns. See
id. Moreover, plaintiff does not allege that the Taser
burns did, in fact, become infected, which belies his
assertion that treatment against infection is mandatory.
See generally Docket No. 1. Third, plaintiff states
that, because his injury satisfies the definition of
“[b]odily injury” under Colorado criminal law,
Wright's alleged failure to provide treatment indicates
that she disregarded a significant risk. Docket No. 71 at 3;
see Colo. Rev. Stat. § 18-1-901(c) (defining
bodily injury in the criminal code as “physical pain,
illness, or any impairment of physical or mental
condition”). Plaintiff fails to explain why an
allegation that he suffered “bodily injury” is
sufficient to satisfy the subjective prong, which requires
Wright to have knowledge of an “excessive risk”
to plaintiff's health. See Farmer, 511 U.S. at
837. Finally, plaintiff objects to the magistrate judge's
statement that “plaintiff's own allegations
describe that he himself was unaware of the extent of the
[Taser burn] injury and did not ask for medical treatment
during the initial examination.” Docket No. 71 at 3-4
(quoting Docket No. 62 at 10). Plaintiff argues that
“this does not mean that . . . nobody else was aware or
that the injuries were minor.” Id. at 4.
However, as discussed above, Wright cannot be subjectively
indifferent to plaintiff's medical needs when, at the
time she was present, plaintiff's symptoms did not
indicate that he had suffered a more serious injury. See
Self, 439 F.3d at 1233.
For the
foregoing reasons, it is
ORDERED
that the Recommendation of United States Magistrate Judge
[Docket No. 62] is accepted. It is further
ORDERED
that plaintiff's Objections to Magistrate's
Recommendations (#62) [Docket No. 71] are overruled. It is
further
ORDERED
that Defendant Amanda Wright's Motion to Dismiss [Docket
No. 27] is granted. It is further
ORDERED
that all claims against defendant Amanda Wright are ...