United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
VANESSA CARSON, Health Service Administrator, LINDSEY E. FISH, Medical Doctor, TEDDY L. LAURENCE, Physician Assistant, TEJINDER SINGH, Physician Assistant, ROBERT L. MANGUSO, Medical Doctor, TIMOTHY R. BROWN, Medical Doctor, and CORRECTIONAL HEALTH PARTNERS, Insurer, and DOE 1, Correctional Officer, Defendants.
ORDER ACCEPTING MAGISTRATE JUDGE’S
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
is a prisoner in the custody of the Colorado Department of
Corrections (“CDOC”). 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
(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.
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”),  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.
MOTION FOR LEAVE TO AMEND
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.
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 ...