Session v. Carson

          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 May 9, 2019 [Docket No. 145]. Magistrate Judge Mix recommends that the Court deny plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction [Docket No. 63] (the “motion for injunction”) and plaintiff’s Second Motion for Leave to Amend Caption, Defendants’ Names, and Section B of the Second Amended Complaint for Injunction Relief Only [Docket No. 97] (the “motion for leave to amend”). Plaintiff filed a “motion in opposition” to the recommendation, which the Court construes as a timely written objection. Docket No. 174.

         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).

         I. BACKGROUND

         Plaintiff is a prisoner in the custody of the Colorado Department of Corrections (“CDOC”).^[1] Plaintiff initiated this lawsuit on January 30, 2018. Docket No. 1. The Court has construed the operative complaint, Docket No. 38, as asserting four claims pursuant to 42 U.S.C. § 1983:

(1) Defendants Fish, Laurence, Singh, and Manguso have violated Plaintiff’s Eighth Amendment rights. Since November 2014 Plaintiff has suffered from a large ventral hernia, a bullet over the lateral left 10th rib cage that eventually pulled free but caused infection, and a meniscus tear and cartilage damage to his left knee. Defendants Fish, Laurence, Singh, and Manguso have (1) disregarded Plaintiff’s complaints of pain and suffering, (2) told him that X-rays did not show a hernia, (3) examined him for a hernia and told him they found nothing, (4) refused to provide pain medication, and (5) acknowledged his left knee was swollen but failed to refer Plaintiff to an orthopedic surgeon to evaluate his knee;

(2) Defendant Correctional Health Partners, in violation of Plaintiff’s Eighth Amendment rights, has created a policy or practice that limits, delays, or denies all initial requests for hernia specialist consultation for assessment, treatment plan, or surgery;

(3) Defendants Carson and Doe I, in violation of Plaintiff’s First and Fourteenth Amendment rights, have willfully and wantonly obstructed and impeded his efforts to file a timely grievance under the DOC Offender Grievance Procedure; and

(4) Defendant Brown has violated Plaintiff’s Eighth Amendment rights because he knowingly repaired Plaintiff’s large ventral hernia with a defective hernia mesh product, which has resulted in (1) Plaintiff suffering severe abdominal pain and discomfort, (2) two large lumps forming at the incision, (3) an increase in the size of the hernia, and (4) urination and bowel elimination issues.

Docket No. 40 at 2-3.

         In the motion for injunction, plaintiff seeks a temporary restraining order and/or preliminary injunction against non-parties Jeff Archambeau (“Archambeau”), the chief executive officer of defendant Correctional Health Partners (“CHP”), ^[2] Rick Raemisch (“Raemisch”), the executive director of CDOC, and Michelle Nelson (“Nelson”), the director of CDOC’s Clinical Services. See Docket No. 63; Docket No. 96 at 2-3. In the motion for leave to amend, plaintiff seeks to file a Third Amended Complaint [Docket No. 96], bringing in as defendants Archambeau, Raemisch, Nelson, CDOC, and Clinical Services, which plaintiff describes as “CDOC’s health [c]are [p]rovider” (together, the “proposed defendants”). Docket No. 97.^[3]

         II. MOTION FOR LEAVE TO AMEND

         The Court turns first to plaintiff’s motion for leave to amend. The magistrate judge concluded that “[p]laintiff’s requested amendments are futile because he does not assert a single claim against any of the five proposed defendants” in the proposed amended complaint. Docket No. 145 at 5. Plaintiff objects to the magistrate judge’s recommendation as to this motion. Docket No. 174 at 3-7.

         The Court agrees with the recommendation. “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). Plaintiff names the proposed defendants as defendants in a section of the complaint titled “defendants[’] information, ” Docket No. 96 at 1-3, and he requests that the Court grant him injunctive relief by ordering the proposed defendants to take certain actions. See, e.g., Docket No. 96 at 28, ¶ 3(1) (requesting that the Court order Raemisch and Clinical Services to preserve all “CDOC communications” related to plaintiff). However, none of plaintiff’s ten claims are explicitly brought against any of the proposed defendants. Compare id. at 3 (stating that plaintiff’s first claim is brought against defendant Lindsey E. Fish). Moreover, the proposed defendants are not mentioned in the factual allegations supporting plaintiff’s claims. See id. at 3-26. Plaintiff’s motion is clear that the only purpose of the amended complaint is to add the names ...