United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
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.
Statement of Facts
following are relevant factual allegations (as opposed to
legal conclusions, bare assertions, or merely conclusory
allegations) made by Marquez in the operative Amended
Complaint,  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).
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
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.
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.
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.
provided the opportunity to do so, Lish did not file a reply
in support of the motion.
Dismissal under Fed.R.Civ.P. 12(b)(1)
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