United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on plaintiff's Objection to
Defendant's Dismissals [Docket No. 31] and Supplemental
Response to Plaintiff's Objection to Dismiss Defendants
[Docket No. 36]. The Court construes plaintiff's filings
as a motion to reconsider Judge Lewis T. Babcock's
October 12, 2018 order dismissing plaintiff's claims
against defendants Anthony A. DeCesaro, Gary Ward, Mary
Ryder, and Nicole Wilson as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). See Docket No.
26.[1]The Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
Plaintiff
is a prisoner in the custody of the Colorado Department of
Corrections (“CDOC”). He filed this lawsuit on
June 6, 2018 asserting claims under 42 U.S.C. § 1983
against various CDOC officials and the governor of Colorado
for deliberate indifference to his serious medical needs and
violation of the Equal Protection Clause of the Fourteenth
Amendment. Docket No. 1 at 6-7. On July 15, 2018, Magistrate
Judge Gordon P. Gallagher entered an order directing
plaintiff to file an amended complaint addressing a number of
deficiencies in his initial pleading. Docket No. 8. In that
order, Judge Gallagher specifically informed plaintiff that
he could not “maintain claims against prison officials
or administrators on the basis that they denied his
grievances.” Id. at 5. Plaintiff filed his
amended complaint on September 14, 2018. Docket No. 23. On
October 12, 2018, Judge Lewis T. Babcock entered an order
dismissing in part plaintiff's complaint under 28 U.S.C.
§ 1915. Docket No. 26. As relevant here, Judge Babcock
determined that plaintiff's claims against defendants
DeCesaro, Ward, Ryder, and Wilson were legally frivolous
because they were “based only on their denial of
Plaintiff's grievances.” Id. at 6; see
also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009) (holding that “a denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not
establish personal participation under [42 U.S.C.] §
1983”). After dismissing these and other claims, Judge
Babcock ordered that plaintiff's remaining claims be
assigned to the undersigned judge pursuant to D.C.COLO.LCivR
40.1(d)(1) (“If an unrepresented party in a new case
already has a case pending or had a case terminated within 12
months of the new filing, the new case shall be assigned to
the judicial officers who were assigned the earlier
case.”). See Docket No. 26 at 7. Following
reassignment of the case, plaintiff moved for reconsideration
of Judge Babcock's order. Docket No. 31.
The
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See Hatfield v. Bd. of
County Comm'rs for Converse County, 52 F.3d 858, 861
(10th Cir. 1995). Instead, motions for reconsideration fall
within a court's plenary power to revisit and amend
interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d
1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b));
see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would
attend the repeated re-adjudication of interlocutory orders,
judges in this district have imposed limits on their broad
discretion to revisit interlocutory orders. See,
e.g., Montano v. Chao, No. 07-cv-00735-EWN-KMT,
2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying
Rule 60(b) analysis to the reconsideration of interlocutory
order); United Fire & Cas. Co. v. McCrerey &
Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL
1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e)
standard to the reconsideration of the duty-to-defend order).
Regardless of the analysis applied, the basic assessment
tends to be the same: courts consider whether new evidence or
legal authority has emerged or whether the prior ruling was
clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or
supporting facts which were available at the time of the
original motion.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Because
plaintiff is proceeding pro se, the Court will
construe his motion for reconsideration liberally without
serving as his advocate. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff
challenges the dismissal of his § 1983 claims against
defendants DeCesaro, Ward, Ryder, and Wilson. See
Docket No. 31 at 1. Plaintiff argues that defendants
“had subjective knowledge of [plaintiff's] medical
condition and his need for chronic care, ” but
“disregarded the information/contents when they had the
authority to intervene.” Docket No. 31 at 1. He further
contends that defendants personally participated in causing
him physical harm “by turning a blind eye on
[plaintiff's] serious medical needs as stated in the many
submitted grievances.” Docket No. 36 at 1. As Judge
Babcock correctly noted, however, the denial of grievances
alone does not establish personal participation in a
constitutional violation for purposes of § 1983.
See Docket No. 26 at 6; see also Gallagher,
587 F.3d at 1069. Here, plaintiff's claims against
defendants DeCesaro, Ward, Ryder, and Wilson were predicated
solely on their failure to intervene in plaintiff's
medical treatment in response to his grievances. See
Docket No. 23 at 11-12 (alleging that defendant DeCesaro
failed to take “appropriate measures to advise the SCF
medical department about the Plaintiff's need for chronic
care availability, ” despite being “aware of the
Plaintiff's medical condition as informed through the
many grievances submitted by the Plaintiff”), 13
(alleging that defendant Ward “had the authority to
intervene by informing the appropriate medical personal [sic]
but failed or refused to do so”), 13 (alleging that
defendant Ryder “had the authority to intervene by
passing on the information written by the Plaintiff in his
many grievances and failed to do so”), 14 (alleging
that defendant Wilson, as “grievance coordinator [had]
the authority to pass the Plaintiff's information about
the seriousness of his ongoing health problems to the proper
medical administrators”). Plaintiff does not allege
that the dismissed defendants had authority over the protocol
for treating plaintiff's medical condition or that they
personally participated in any of the alleged treatment
decisions underlying plaintiff's grievances. Accordingly,
Judge Babcock did not clearly err in dismissing
plaintiff's claims and there is no basis to reconsider
his order. Compare Whitington v. Ortiz, 307
Fed.Appx. 179, 192-93 (10th Cir. 2009) (unpublished)
(dismissing claim against grievance officer who allegedly
denied plaintiff's grievance and failed to investigate
plaintiff's “claimed lack of hygiene items”
where there was “no allegation that Officer Bullard had
any authority with respect to official CDOC policy or that he
personally participated in any of the deprivations that led
[plaintiff] to file the grievance in the first place”),
and Larson v. Meek, 240 Fed.Appx. 777, 780 (10th
Cir. 2007) (unpublished) (affirming dismissal of § 1983
claims where “[n]othing in either the original or the
amended complaint indicate[d] any action or omission by [the
defendant] beyond his denial of [the plaintiff's]
grievances”), with Womble v. Harvanek, 739
Fed.Appx. 470, 473 (10th Cir. 2017) (unpublished) (reversing
dismissal of Eighth Amendment claims where plaintiff alleged
that the warden was “wholly responsible for the day to
day operations” of the correctional facility and
directly responded to plaintiff's request for
uncontaminated drinking water, “telling Plaintiff to
drink the water from his cell sink”), and Brooks v.
Colo. Dep't of Corrs., 715 Fed.Appx. 814, 821 (10th
Cir. 2017) (unpublished) (holding that defendant was not
entitled to summary judgment on Eighth Amendment claim where
plaintiff “presented evidence that he had directed his
request for a special meal pass to only one person, [the
defendant], who decided to reject his
request”).[2]
For the
foregoing reasons, it is
ORDERED
that plaintiff's Objection to Defendant's Dismissals
[Docket No. 31] and Supplemental Response to Plaintiff's
Objection to Dismiss Defendants [Docket No. 36], which the
Court construes as a motion to reconsider Judge Babcock's
October 12, 2018 order of partial dismissal, Docket No. 26,
is DENIED.
---------
Notes:
[1]Judge Babcock also dismissed defendant
CDOC Infectious Committee on the ground that “the
committee is not a person subject to suit in a 42 U.S.C.
§ 1983 action.” Docket No. 26 at 7. Plaintiff does
not challenge that ruling.
[2] Plaintiff's assertion that
defendant Ward was a health services administrator and
therefore responsible for ensuring that plaintiff received
“adequate and proper health care, ” Docket No. 23
at 13, does not establish that defendant Ward had the
authority to intervene in the specific treatment decisions
underlying plaintiff's grievances. See Brooks,
715 Fed.Appx. at 820 (“Defendants can incur liability
under § 1983 only if they participate in, control, or
direct the underlying act or omission.”); Arocho v.
Nafziger, 367 Fed.Appx. 942, 955 (10th Cir. 2010)
(unpublished) (suggesting that the denial of a grievance can
result in liability if the grievance officer “has an
independent responsibility for the wrong in question and the
grievance provides the necessary notice of the wrong or the
effective means to correct it”). In the step two
grievance form submitted by ...