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Baker v. Garden

United States District Court, D. Utah

September 26, 2018

ROBERT R. BAKER, Plaintiff,
v.
DR. RICHARD GARDEN et al. Defendants.

          MEMORANDUM DECISION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          CLARK WADDOUPS, UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff 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.[1] 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 information.

         Defendants 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 further litigation.

         I. STATUTE OF LIMITATIONS

         “Utah's 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).

         This action was filed on September 17, 2015; thus, any claims accruing before September 11, 2011 could be barred by the statute of limitations.

         Court 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.)

         “When 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).

         The 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.

         II. MOTION TO DISMISS

         A. STANDARD OF REVIEW

         In 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).

         This 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 omitted)).

         B. AFFIRMATIVE LINK

         The 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).

         Considering 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.

         C. RETALIATION CLAIM

         Plaintiff 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 MS.

         “It 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).

         The 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.

         “[I]t 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.

         Still, 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.

         All 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).

         Finally, 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.

         Plaintiff's 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.

         D. INADEQUATE-MEDICAL-CARE CLAIMS

         1. PLAINTIFF'S CLAIMS SURVIVE MOTION TO DISMISS.

         Plaintiff 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.

         The 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)).

         Any 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 (1991).

         Under 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).

         The 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 violation.”).

         Delay 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 ...


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