United States District Court, D. Utah
ROBERT R. BAKER, Plaintiff,
DR. RICHARD GARDEN et al. Defendants.
MEMORANDUM DECISION & ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS
WADDOUPS, UNITED STATES DISTRICT COURT JUDGE.
Robert R. Baker brings civil-rights claims against Utah State
Prison (USP) medical personnel Richard Garden, Logan Clark,
Joseph Coombs, Terry Jeffries, Raymond Merrill, Sidney
Roberts, Sam Stone, and Kennon Tubbs. See 42 U.S.C.S.
§ 1983 (2018). He asserts his federal constitutional
rights were violated when Defendants (a) gave inadequate
medical treatment, and (b) retaliated when he sought medical
counter with a motion to dismiss, asserting that--between
Plaintiff's Amended Complaint and its attached copies of
grievance documents and medical records--Plaintiff fails to
state a claim upon which relief may be granted. The Court
first considers the applicable statute of limitations, which
Defendants did not address. The Court then dismisses one
defendant and one claim, but not the others, and orders
STATUTE OF LIMITATIONS
four-year residual statute of limitations . . . governs suits
brought under [§] 1983.” Fratus v.
Deland, 49 F.3d 673, 675 (10th Cir. 1995). And
“[a]ctions under § 1983 normally accrue on the
date of the [alleged] constitutional violation, ”
Garza v. Burnett, 672 F.3d 1217, 1219 (10th Cir.
2012), as § 1983 claims “accrue when the plaintiff
knows or has reason to know of the injury that is the basis
of the action.” Workman v. Jordan, 32 F.3d
475, 482 (10th Cir. 1994). The Court notes that “[a]
plaintiff need not know the full extent of his injuries
before the statute of limitations begins to run, ”
Industrial Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 969 (10th Cir. 1994); see
also Romero v. Lander, 461 Fed.Appx. 661, 669 (2012)
(1983 case), and “it is not necessary that a claimant
know all of the evidence ultimately relied on for
the cause of action to accrue.” Baker v. Bd. of
Regents of State of Kan., 991 F.2d 628, 632 (10th Cir.
1993) (emphasis in original).
action was filed on September 17, 2015; thus, any claims
accruing before September 11, 2011 could be barred by the
statute of limitations.
may raise the statute of limitations affirmative defense
sua sponte when it is “clear from the face of
the complaint [and is] rooted in adequately developed
facts.” Fratus, 49 F.3d at 674-75. This is
true as to the following claims:
(1) Defendant Kennon Tubbs: Allegation that, on October 4,
2005, Defendant Tubbs consulted Plaintiff regarding
neuropathy and pressure sores, then told Plaintiff that he
would have to buy shoes at the commissary instead of
providing special shoes.
(2) Defendant Logan Clark: Allegation that, before October
28, 2010, Defendant Clark refused to provide medical sports
shoe to Plaintiff. (Inmate Grievance Form, Am. Compl., Doc
13, at 58.)
(3) Defendant Terry Jeffries: Allegation that, on October 28,
2010, Defendant Jeffries refused to provide authorization for
well-fitted shoes. (Id.)
(4) Defendant Sam Stone: Allegation that, on May 5, 2010,
Defendant Stone delivered ill-fitting slippers instead of
well-fitted shoes. Indeed, “Officer Stone refused to
supply well-fitted shoes, claiming inmates were selling them
for commissary.” (Am. Compl, Doc. No. 13, at 14.)
a district court believes it is likely that a pro se
prisoner's § 1983 complaint is dismissible on the
basis of the state's statute of limitations, the court
may issue a show cause order giving the plaintiff an
opportunity to explain why the statute of limitations should
not be tolled.” Arroyo v. Starks, 589 F.3d
1091, 1097 (10th Cir. 2009).
Court does so here, requiring Plaintiff to within thirty days
show cause why the statute of limitations should be tolled as
to ONLY the four claims and defendants listed (1) through (4)
in this section.
MOTION TO DISMISS
STANDARD OF REVIEW
evaluating the propriety of dismissing a complaint for
failure to state a claim upon which relief may be granted,
this Court takes all well-pleaded factual assertions as true
and regards them in a light most advantageous to the
plaintiff. Ridge at Red Hawk L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007). Dismissal is
appropriate when, viewing those facts as true, the plaintiff
has not posed a "plausible" right to relief.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48
(10th Cir. 2008). "The burden is on the plaintiff to
frame a 'complaint with enough factual matter (taken as
true) to suggest' that he or she is entitled to
relief." Robbins, 519 F.3d at 1247 (quoting
Twombly, 550 U.S. at 556). When a civil rights
complaint contains "bare assertions," involving
"nothing more than a 'formulaic recitation of the
elements' of a constitutional . . . claim," the
Court considers those assertions "conclusory and not
entitled to" an assumption of truth. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1951 (2009) (quoting
Twombly, 550 U.S. at 554-55). In other words,
"the mere metaphysical possibility that some
plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint must
give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for
these claims." Red Hawk, 493 F.3d at
1177 (italics in original).
Court must construe these pro se "'pleadings
liberally,' applying a less stringent standard than is
applicable to pleadings filed by lawyers. Th[e] court,
however, will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf." Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(citations omitted). In the Tenth Circuit, this means that if
this Court can reasonably read the pleadings "to state a
valid claim on which the plaintiff could prevail, it should
do so despite the plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements." Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not
"the proper function of the district court to assume the
role of advocate for the pro se litigant." Id.;
see also Peterson v. Shanks, 149 F.3d 1140, 1143
(10th Cir. 1998) (citing Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989) (per curiam)). Dismissing the
complaint "without affording the plaintiff notice or an
opportunity to amend is proper only 'when it is patently
obvious that the plaintiff could not prevail on the facts
alleged, and allowing him an opportunity to amend his
complaint would be futile.'" Curley v.
Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting
Hall, 935 F.2d at 1110 (additional quotation marks
facts must clearly show what each individual defendant did to
violate Plaintiff's civil rights. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating
personal participation defendant is essential allegation in
civil-rights action). This means that Plaintiff must
“'make clear exactly who is alleged to
have done what to whom.'"
Stone v. Albert, No. 08-2222, slip op. at 4 (10th
Cir. July 20, 2009) (unpublished) (emphasis in original)
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008)). Plaintiff may not succeed in a claim based
solely on supervisory liability. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability
under § 1983). Nor does "denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff . . . establish
personal participation under § 1983." Gallagher
v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at
*11 (10th Cir. Nov. 24, 2009).
these guidelines, the Court concludes that Plaintiff has done
nothing to affirmatively link Defendant Garden to his claims,
but has instead identified him as merely a supervisor or
bystander--and has not tied any material facts to him.
Plaintiff's claims against this defendant therefore may
not survive further. And Defendant Garden is thus dismissed.
asserts that his medical clearances for a shower chair,
bottom bunk and certain shoes--apparently based on his
multiple-sclerosis (MS) diagnosis--were revoked because he
requested the “Medical Operations Manual” through
the Government Records Access and Management Act (GRAMA). The
only link he makes between the revocation of his clearances
and his request is timing: He made a successful GRAMA request
and within twenty-five days (on January 18, 2013) his medical
clearances were revoked. He raised the motive of retaliation
individually with Defendants Jeffries, Roberts, and Garden.
Defendants Jeffries and Roberts seemed to indicate that the
medical clearances had been revoked while they anticipated
the results of an MRI to verify whether Plaintiff indeed had
is well-settled that ‘[p]rison officials may not
retaliate against or harass an inmate because of the
inmate's exercise of his right of access to the
courts.'” Gee v. Pacheco, 627 F.3d 1178,
1189 (10th Cir. 2010) (quoting Smith, 899 F.2d at
947). To show retaliation, Plaintiff must prove three
elements: (1) Plaintiff was involved in
“constitutionally protected activity”; (2)
Defendants' behavior injured Plaintiff in a way that
“would chill a person of ordinary firmness from
continuing to engage in that activity”; and (3)
Defendants' injurious behavior was “substantially
motivated” as a reaction to Plaintiff's
constitutionally protected conduct. Shero v. City of
Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Court assumes--for purposes of this Order only--that the
first two elements are met. See Ellis v. Franco, No.
CIV 15-0848, 2017 WL 3052503, at *8 (D.N.M. July 12, 2018).
The Court next considers whether (based on the facts assumed
to be true in the Amended Complaint and attachments)
Defendants' behavior (i.e., revoking medical clearances)
was substantially motivated by their knowledge of Plaintiff
successfully requesting the medical manual.
is not the role of the federal judiciary to scrutinize and
interfere with the daily operations of a state prison.”
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.
1998). Thus, “to satisfy the third prong of the First
Amendment test, an inmate must allege specific facts showing
that ‘but for the retaliatory motive, the
incidents to which he refers . . . would not have taken
place.'” Banks v. Katzenmeyer, 645
Fed.Appx. 770, 772 (10th Cir. 2016) (emphasis added) (quoting
Peterson, 149 F.3d at 1144 (internal quotation marks
omitted)). This is a “heightened standard” that
requires that Plaintiff must show “a triable issue not
only that retaliation for [requesting the medical manual]
played a role in [revocation of medical clearances] but that
such retaliation was the decisive factor.” Strope
v. McKune, 382 Fed.Appx. 705, 710 (10th Cir. 2010)
(unpublished); see also Smith, 899 F.2d at 949
(stating plaintiff must “prove that the actual
motivating factor behind defendants' actions was
retaliation for his prior or current litigation”);
Strope v. Cummings, 381 Fed.Appx. 878, 884 (10th
Cir. 2010) (unpublished) (“Keeping in mind the rigorous
burden placed on Strope to show not only that a retaliatory
motive may have played some role in his transfer but that
such a motive was the strict but-for cause of his transfer,
we conclude that he has failed to make the necessary showing
on this element to defeat summary judgment, i.e., his
evidence was ‘merely colorable' at best and not
‘significantly probative.'”) (citations
omitted). Therefore, it was critical to Plaintiff's
avoidance of dismissal that he assert facts detracting from
Defendants' alternative justifications for the
medical-clearance revocation. See McKune, 382
Fed.Appx. at 710.
Plaintiff asserted no facts to undermine Defendants'
alternative justifications. See id. Instead, his
“attribution of retaliatory motive is conjectural and
conclusory” and he actually asserted the facts
of Defendants' alternative justifications; after all, all
the facts relied on by the Court here come from
Plaintiff's amended complaint and attachments.
Cummings, 381 Fed.Appx. at 883; see also
Banks, 645 Fed.Appx. at 774 n.2 (“A
plaintiff's subjective beliefs about why the government
took action, without facts to back up those beliefs, are not
sufficient to create a genuine issue of fact concerning [a]
First Amendment retaliation claim.” (internal quotation
marks and citation omitted) (alteration in original));
Ellis, 2017 U.S. Dist. LEXIS 108683, at *21
(“An inmate's mere speculation that actions taken
by correctional officials were in retaliation for the
exercise of his First Amendment rights cannot defeat summary
judgment.”) While he may very well have participated in
the assertedly protected activity of requesting the medical
manual through GRAMA for purposes of pursuing grievances and
a potential lawsuit, that by itself does not provide the
required nexus for his retaliation claim. See id.
“If it did, litigious prisoners could claim retaliation
over every perceived slight and resist [defendant arguments
to the contrary] simply by pointing to their
litigiousness.” Id. Of course, Plaintiff was
not inoculated from standard conditions of confinement simply
because he was preparing grievances and possibly a lawsuit.
See id. The Tenth Circuit has “consistently
held that temporal proximity between protected activity and a
challenged prison action does not, in itself, demonstrate the
causal nexus for a retaliation claim.” Id.
While Plaintiff argues a time correlation, he does not show
other circumstantial evidence that might strengthen his
hand--e.g., other “coincidences, ” or patterns of
behavior. See Smith, 899 F.2d at 949.
that is left are Defendants' explanations--found in
Plaintiff-provided material--that the medical clearances were
revoked because they were based on a diagnosis of multiple
sclerosis that had not been confirmed yet by prison medical
staff, who then arranged to have it confirmed with an MRI.
See id. Even if Plaintiff firmly believes that the
timing of the medical-clearance revocations were closely tied
together and could arouse suspicion that the events were
correlated, “temporal proximity per se is insufficient
to show that the stated explanation for a challenged action
is pretextual.” Id.; see also Smith v.
Drawbridge, No. CIV-16-1135-HE, 2017 U.S. Dist. LEXIS
175923, at *27 (W.D. Okla. Sept. 8, 2017) (report &
recommendation) (stating “'suspicious timing,'
without more, is insufficient to support a reasonable
inference that these actions” were taken because
Plaintiff exercised constitutional rights). Plaintiff has
himself provided facts that Defendants “have come
forward with reasons for . . . action taken against
[Plaintiff].” Northington v. Zavaras, No.
99-1184, 2000 U.S. App. LEXIS 19113, at *10 (10th Cir. August
10, 2000) (unpublished).
the factual allegations give no inkling that Defendants knew
of Plaintiff's GRAMA request. So, it does not follow that
Defendants revoked Plaintiff's medical clearances to
retaliate for the request.
retaliation claim fails due to his factual allegations
showing that Defendants had another motive for revoking his
clearances (need to confirm MS diagnosis) aside from
potential retaliation for his GRAMA request. The retaliation
claim is thus dismissed.
PLAINTIFF'S CLAIMS SURVIVE MOTION TO DISMISS.
argues Defendants' actions violated his Eighth Amendment
rights--i.e., Defendants' inadequate medical care equaled
cruel and unusual punishment. Defendants move to dismiss,
contending Plaintiff has not stated a claim upon which relief
may be granted.
Eighth Amendment's ban on cruel and unusual punishment
requires prison officials to “provide humane conditions
of confinement” including “adequate . . . medical
care.” Craig v. Eberly, 164 F.3d 490, 495
(10th Cir. 1998)) (quoting Barney v. Pulsipher, 143
F.3d 1299, 1310 (10th Cir. 1998)). To state a cognizable
claim under the Eighth Amendment for failure to provide
proper medical care, “a prisoner must allege acts or
omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.”
Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)
(emphasis in original) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)).
Eighth Amendment claim must be evaluated under objective and
subjective prongs: (1) “Was the deprivation
sufficiently serious?” And, if so, (2) “Did the
officials act with a sufficiently culpable state of
mind?” Wilson v. Seiter, 501 U.S. 294, 298
the objective prong, a medical need is “sufficiently
serious . . .if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity
for a doctor's attention.” Sealock, 218
F.3d at 1209 (citations and quotation marks omitted).
subjective component requires the plaintiff to show that
prison officials were consciously aware that the prisoner
faced a substantial risk of harm and wantonly disregarded the
risk “by failing to take reasonable measures to abate
it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994). “[T]he ‘inadvertent failure to provide
adequate medical care' tantamount to negligence does not
satisfy the deliberate indifference standard.”
Sparks v. Singh, 690 Fed.Appx. 598, 604 (10th Cir.
2017) (unpublished) (quoting Estelle v. Gamble, 429
U.S. 97, 105-06 (1976)). Furthermore, “a prisoner who
merely disagrees with a diagnosis or a prescribed course of
treatment does not state a constitutional violation.”
Perkins v. Kan. Dep't of Corrs., 165 F.3d 803,
81110th Cir. 1999); see also Gee v. Pacheco, 627
F.3d 1178, 1192 (10th Cir. 2010) (“Disagreement with a
doctor's particular method of treatment, without more,
does not rise to the level of an Eighth Amendment
in receiving treatment is cognizable only if the delay was
caused by deliberate indifference and resulted in substantial
harm. Olson, 9 F.3d at 1477. “[I]n the context
of a missed diagnosis or delayed referral, there must be
direct or circumstantial evidence that ‘the need for
additional treatment or referral to a medical specialist is
obvious, '” and “'where a doctor merely
exercises his considered medical judgment, '” no