Opinion
Civil Action 22-cv-02277-NYW-STV
10-05-2023
PAUL L. FREEMAN, Plaintiff, v. OFFICER HORST, OFFICER SHULTZ, and UNKNOWN ADMINISTRATIVE AGENT, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United Stated Magistrate Judge
This matter is before the Court on Defendants' Motion to Dismiss Amended Complaint (the “Motion”). [#45] The Motion has been referred to this Court. [#46] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Amended Complaint (the “Complaint”) [#36], which the Court accepts as true at this stage of the proceedings. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
At the time of the events giving rise to the present suit, Plaintiff was a Colorado Department of Corrections (“CDOC”) inmate. [#36 at 2-4] Defendants Horst and Shultz are fully trained transportation specialists with the CDOC. [Id. at ¶ 2] On September 21, 2020, at approximately 8:00 a.m., Defendant Horst loaded Plaintiff into a wheelchair accessible transport van for transport to Denver General Hospital for treatment for an eye issue. [Id. at ¶¶ 3, 28] Defendant Horst placed Plaintiff in the first row of seating behind the caged driver's compartment, which left approximately four to five feet of open space between Plaintiff and the steel cage. [Id. at ¶ 7] Defendants Horst and Shultz did not place Plaintiff or any of the other transported inmates into seating restraints and Plaintiff, who was handcuffed, belly-chained, and shackled, lacked the ability to seatbelt himself. [Id. at ¶¶ 5-6]
Approximately fifteen minutes into the transport to Denver General Hospital, Defendant Horst suddenly slammed on the brakes to avoid crashing into a car that Defendant Horst had been trailing. [Id. at ¶ 8] At the time, “Defendant Horst was recklessly driving at a dangerous speed, too close to the car in front of Defendant Horst, in heavy traffic through downtown Denver.” [Id.] “Being a fully trained transportation specialist for the [CDOC], Defendant Horst knew that such driving was reckless and fundamentally unsafe.” [Id. at ¶ 9] Defendant Shultz failed to intervene to prevent Defendant Horst's reckless driving. [Id. at ¶ 11]
As a result of the emergency stop, Plaintiff was ejected from his seat. [Id. at ¶ 12] Plaintiff flew four to five feet, head/face first, into the steel cage at the front of the transport van. [Id.] Defendant Horst stopped the van and Defendant Shultz approached the back of the van where Plaintiff lay crumpled on the floor. [Id. at ¶ 13] Defendant Shultz placed Plaintiff back in his seat and, as he did so, Plaintiff informed Defendant Shultz that his head was throbbing and his neck and left knee were hurting. [Id. at ¶¶ 14-15] Defendant Shultz told Plaintiff that there was nothing further that could be done until they returned to the prison. [Id. at ¶ 16]
Upon arrival at Denver General Hospital, Plaintiff asked Defendant Shultz if he could have one of the hospital personnel attend to Plaintiff's injuries. [Id. at ¶ 27] Defendant Shultz told Plaintiff that they were only at the hospital for Plaintiff's previously schedule eye appointment and that Plaintiff's other injuries would not be addressed until they returned to the prison. [Id. at ¶ 28] Upon their return to the prison, Defendants Horst and Shultz would not allow Plaintiff to go to the prison medical facilities to have prison medical personnel attend Plaintiff's injuries and instead ordered Plaintiff to return to his living unit. [Id. at ¶¶ 29, 31]
The next morning, Plaintiff awoke with a tingling numbness from his neck to his left hand. [Id. at ¶ 32] At approximately 7:00 a.m., Plaintiff was finally permitted to go to the prison's medical facility. [Id. at ¶ 33] That was the first treatment Plaintiff received for his injuries. [Id. at ¶ 17]
At some point after the accident, Plaintiff received an MRI showing Plaintiff's C5 and C6 vertebrae were damaged. [Id. at ¶ 37] An unknown medical specialist placed a formal request for Plaintiff to receive a “Spinal Injection - Cervical TFESI” for diagnostic and therapeutic purposes. [Id. at ¶ 38] Although Plaintiff was approved for this procedure, on November 16, 2022, Defendant Unknown Administrative Agent “capriciously and arbitrarily” ordered the procedure to be cancelled. [Id. at ¶¶ 39-40] To this day, Plaintiff still experiences back pain, head/neck pain, and tingling numbness from his neck to his left hand. [Id. at ¶¶ 19, 34, 41]
Plaintiff, proceeding pro se, initiated the instant action on September 2, 2022. [#1]
He filed the operative Complaint on March 27, 2023. [#36] The Complaint asserts three causes of action: (1) “Reckless Endangerment” in violation of Plaintiff's Eighth Amendment rights against Defendants Horst and Shultz related to the transport van accident[id. at ¶¶ 1-20]; (2) denial of medical treatment in violation of the Eighth Amendment against Defendants Horst and Shultz related to these Defendants' refusal to provide Plaintiff medical care on the date of his injury [id. at ¶¶ 21-35]; and (3) denial of medical treatment in violation of the Eighth Amendment against Defendant Unknown Administrative Agent related to the cancelling of Plaintiff's spinal injection procedure [id. at ¶¶ 36-42]. The Complaint seeks compensatory, punitive, and nominal damages. [Id. at 11]
The parties have treated this claim as a deliberate indifference claim [##45 at 4-8; 53 at 6] and, liberally construing Plaintiff's Complaint, the Court will likewise treat this claim as alleging deliberate indifference in violation of the Eighth Amendment.
On April 25, 2023, Defendants filed the instant Motion, seeking dismissal of the claims against them. [#45] Plaintiff has responded to the Motion [#53] and Defendants have replied [#54].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
The Motion argues: (1) Plaintiff does not plausibly allege deliberate indifference [#45 at 4-11]; (2) Plaintiff's claims do not implicate any clearly established rights and, as a result, Defendants are entitled to qualified immunity [id. at 11-14]; and (3) Plaintiff's claims cannot support a punitive damages claim [id. at 14-15]. The Court begins with a discussion of qualified immunity. The Court then turns to a discussion of deliberate indifference in general. Finally, the Court turns to each of Plaintiff's claims.
A. The Doctrine of Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). Once the defense of qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
“To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent” such that it is “settled law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Id. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted). Nonetheless, the Supreme Court has made clear that it “do[es] not require a case directly on point, [provided] existing precedent . . . placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. The Tenth Circuit has explained the “clearly established” prong of the qualified immunity analysis as follows:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established .... Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted) (alteration in original).
Courts have “discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In Pearson, the Supreme Court recognized that “[w]hen qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff's claim or claims may be hard to identify” and thus the determination of the first prong of the qualified immunity analysis may be “an uncomfortable exercise,” because “the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed.” Id. at 238-39 (internal quotation omitted). The Supreme Court further acknowledged that, in certain cases, “a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. at 239.
B. Deliberate Indifference
The Eighth Amendment protects a prisoner's right to “humane conditions of confinement guided by ‘contemporary standards of decency.'” Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials are required to “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998). Prison officials violate this standard when they are deliberately indifferent to an inmate's safety or serious medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
“‘Deliberate indifference' involves both an objective and a subjective component. The objective component is met if the deprivation [of the medical need] is ‘sufficiently serious.'” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “[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.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). The subjective component of a deliberate indifference claim “is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839). In other words, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837) (alteration in original); see also id. at 753 (stating that the subjective component inquiry is: “were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”).
C. Plaintiff's Eighth Amendment Reckless Driving Claim
Plaintiff alleges that Defendants Horst and Shultz violated Plaintiff's Eighth Amendment rights when they failed to secure Plaintiff with seat restraints and Defendant Horst proceeded to drive recklessly. [#36 at ¶¶ 1-20] Defendants argue that Plaintiff has failed to adequately allege a constitutional violation. [#45 at 4-7] Alternatively, Defendants maintain that they are entitled to qualified immunity because Plaintiff has not demonstrated that the right at issue was clearly established. [Id. at 13] The Court agrees that Defendants are entitled to qualified immunity on Plaintiff's Eighth Amendment reckless driving claim.
1. The Constitutional Violation
Claim One alleges that Defendants Horst and Shultz violated Plaintiff's Eighth Amendment rights when they failed to secure Plaintiff with seat restraints and Defendant Horst proceeded to drive recklessly. [#36 at ¶¶ 1-20] In Bassett v. Klinkler, a court in this district summarized the law, at least at that time, with respect to Eighth Amendment deliberate indifference claims resulting from accidents involving prisoner transports. No. 13-cv-03391-MJW, 2014 WL 5444086, at *2-4 (D. Colo. Oct. 17, 2014). As the Bassett court explained, the failure of prison officials to provide inmates with seatbelts resulting in injury following an accident, without more, does not give rise to an Eighth Amendment deliberate indifference claim. Id. at *3 (collecting cases). But, “[t]his is not to say that such accidents are never actionable.” Id. Rather, an Eighth Amendment claim has been found in those “cases [that] show knowing conduct creating an intolerable risk.” Id. (citing Kemp v. Webster, No. 09-cv-00295-RBJ-MJW, 2012 WL 4919615, at * 6 (D. Colo. Oct. 1, 2012) (denying summary judgment where the plaintiff alleged: (1) no use of seatbelt, (2) snowy weather and icy roads, (3) the driver made erratic lane changes, (4) the driver was following too closely, (5) the vehicle was fishtailing, and (6) the driver persisted despite warnings from other guards); Banks v. Dart, No. 12 C 4333, 2012 WL 4852993, at *1 (N.D. Ill. Oct. 10, 2012) (denying motion to dismiss where the plaintiff alleged: (1) drivers of two transport buses drove at a fast speed, (2) drivers drove too close to each other, and (3) the officers had been drinking alcohol); Miller v. Bishop, No. 3:07CV00170JMM/HLJ, 2009 WL 1748223, at *3 (E.D. Ark. June 19, 2009) (denying motion to dismiss where the plaintiff alleged: (1) that he was placed in the back seat in restraints and without a seatbelt, (2) the defendant drove at speeds of 70-78 miles per hour in a construction area, and (3) the defendant was on his cellphone); Brown v. Atkinson, No. 08-2101, 2009 WL 1586681, at *1-2 (W.D. Ark. June 4, 2009) (denying motion to dismiss where the plaintiff alleged: (1) that he was shackled with handcuffs and leg irons, (2) the transport van did not contain seat belts or safety belts, (3) the driver drove at a high rate of speed exceeding 50 miles per hour through city streets and up to 100 miles per hour on the freeway and interstate, and (4) it was obvious to everyone that the driver of the van was under the influence of a drug); Pendleton v. Schroeder, No. C 98 0791 FMS, 1998 WL 273000, at *1-2 (N.D. Cal. May 22, 1998) (denying motion to dismiss where plaintiffs alleged: (1) they were transported in vans lacking seatbelts, (2) they were cuffed at their hands, waists, and ankles, and (3) it was prison practice for the vehicles to be driven dangerously fast and close to each other so that cars could not merge in between the transport vans)).
Here, Plaintiff alleges that Defendants: (1) failed to secure Plaintiff with seating restraints, (2) left Plaintiff restrained in a wheelchair with approximately 4-5 feet of space between Plaintiff and the caged driver's compartment, (3) drove at a “dangerous speed” too close to the vehicle in front of the van, and (4) did so in heavy traffic. [#36 at ¶¶ 3, 58] Ultimately, the Court need not determine whether these allegations are sufficient to raise Plaintiff's claim beyond the “garden-variety negligence cases in which no [42 U.S.C. § 1983] claim is stated.” Bassett, 2014 WL 544086, at * 4 (concluding that the plaintiff did not allege an Eighth Amendment claim where he alleged: (1) the plaintiff was unrestrained, (2) the driver was tailgating, (3) the non-driving guard did not say anything about the tailgating, and (4) the car in front of the transport vehicle came to a sudden stop). Rather, the Court finds this claim to be one in which the Court can “rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Pearson, 555 U.S. at 239. Exercising its discretion, therefore, the Court declines to decide the constitutional question and instead turns to the clearly established prong of the qualified immunity analysis.
2. Clearly Established Right
The requirement that the right be clearly established presents a “demanding standard” intended to ensure the protection of “all but the plainly incompetent or those who knowingly violate the law.” Wesby, 138 S.Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Plaintiff cites to no case by the Supreme Court or the Tenth Circuit that would clearly establish that it was a violation of the Eighth Amendment for Defendants to operate the transport vehicle in the manner which has been alleged here. [#53] Nor has the Court identified any such case. Neither has the Court determined that the clearly established weight of authority from other courts has found the law to be as the plaintiff maintains. Indeed, as the cases cited above demonstrate, courts have generally only found Eighth Amendment violations related to reckless operation of transport vehicles where there has been alleged drug or alcohol use by the driver, warnings from other drivers, or some other excessive risk that should have made the danger patently obvious to any prison official. See supra Part III.C.1. Thus, Plaintiff has failed to carry his burden to show that Defendants Horst and Shultz violated clearly established law through their operation of the transport van. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED with respect to Plaintiff's deliberate indifference Eighth Amendment claim against Defendants related to Defendants' operation of the transport vehicle and that Claim One be DISMISSED WITHOUT PREJUDICE. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
As another court in this district has recognized:
The Court is mindful that the Tenth Circuit's admonition that a plaintiff bears the burden of citing to the Court clearly established law, see Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010), typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim-where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019).Brandt v. Crone, No. 19-CV-03103-MEH, 2021 WL 681441, at *5 (D. Colo. Feb. 22, 2021), aff'd, No. 21-1093, 2022 WL 898761 (10th Cir. Mar. 28, 2022). “Therefore, the Court has conducted an additional inquiry to determine whether the relevant law was clearly established as of the dates of these events.” Id.
D. Plaintiff's Denial of Medical Care Claim from the Date of the Accident
Plaintiff's Second Claim alleges that Defendants Horst and Shultz acted with deliberate indifference in violation of the Eighth Amendment when they refused to provide Plaintiff medical care on the date of the accident. [#36 at ¶¶ 21-35] In the prison medical context, the Tenth Circuit recognizes two types of conduct that will constitute deliberate indifference to a medical need. First, “a medical professional may fail to treat a serious medical condition properly.” Sealock, 218 F.3d at 1211. Second, a prison official may “prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” Id. Here, because neither Horst nor Shultz were medical professionals, the Court focuses on the second type of conduct-that of gatekeepers. Paugh v. Uintah Cnty., 47 F.4th 1139, 1154 (10th Cir. 2022).
The subjective component of Plaintiff's claim “requires the plaintiff to present evidence of the prison official's culpable state of mind.” Mata, 427 F.3d at 751. At the pleading stage, the plaintiff must plausibly allege “that a defendant ‘knows of and disregards an excessive risk to inmate health or safety.'” Paugh, 47 F.4th at 1156 (quoting Strain v. Delgado, 977 F.3d 984, 990 (10th Cir. 2020)). For this, the plaintiff must plausibly allege “that a defendant was both ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed],' and that the defendant actually drew the inference.” Id.
Defendants argue that Plaintiff has failed to plausibly allege both the objective and subjective prongs of his deliberate indifference claim related to his delay in getting treatment following the accident. [#45 at 8-10] Because the Court agrees that Plaintiff has failed to plausibly allege the subjective component of his deliberate indifferent claim, the Court will presume for purposes of this motion that he has adequately pled the objective component.
Here, Plaintiff alleges that Defendant Horst's emergency stop caused Plaintiff to be ejected from his seat and fly approximately five feet into the steel cage at the front of the transport van. [#36 at ¶ 12] Defendant Shulz came to the back of the van and observed Plaintiff crumpled on the floor. [Id. at ¶ 22] As Defendant Shulz was helping Plaintiff back into his seat, Plaintiff informed Defendant Shulz that his head was throbbing and that his neck and left knee were hurting.” [Id. at ¶¶ 23-24]
Here, these facts are insufficient to plausibly allege that Defendant Horst or Shulz knew of and disregarded an “excessive risk” to Plaintiff's safety when they delayed in providing Plaintiff medical attention. Paugh, 47 F.4th at 1156. Put another way, while these facts may have suggested to the Defendants that Plaintiff had suffered some minor injuries in the near-accident-including potential twisting of the knee and neck, and a possible bump to the head-there is nothing to suggest that Defendants were aware that Plaintiff faced a “substantial risk of serious harm” if he was not provided immediate medical attention. Id. Plaintiff has not alleged that he lost consciousness, was vomiting, or was showing other signs of a concussion or dangerous head trauma. Nor has he alleged anything about the knee and neck pain that may have suggested that Plaintiff was at substantial risk of serious harm if he was not provided immediate medical treatment.And he has alleged that he was treated at the hospital that same day. [#36 at ¶¶ 27-28] While that treatment was admittedly for Plaintiff's eye issues and not for Plaintiff's injuries, the fact still suggests that Plaintiff's injuries were not so obvious as to suggest that Plaintiff was at a substantial risk of serious harm-otherwise, the risk from the injuries would have likewise been obvious to the treating physician. Accordingly, the Court concludes that Plaintiff has failed to plausibly allege the subjective component of his deliberate indifference claim against Defendants Horst or Shultz related to their delay in medical treatment on the day of the accident. The Court thus respectfully RECOMMENDS that the Motion be GRANTED with respect to Plaintiff's deliberate indifference Eighth Amendment claim against Defendants related to Defendants Horst's and Shultz's delay in providing Plaintiff medical treatment and that Claim Two be DISMISSED WITHOUT PREJUDICE. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
The Court is cognizant of the fact that a “prisoner may satisfy the subjective component by showing that defendants' delay in providing medical treatment caused either unnecessary pain or a worsening of her condition” and that “[e]ven a brief delay may be unconstitutional.” Mata, 427 F.3d at 755. Nonetheless, “not every twinge of pain suffered as the result of delay in medical care is actionable.” Id. Here, Plaintiff has alleged neither the degree of pain that he was suffering (other than a brief mention of his head throbbing) nor the duration of that pain. Nor has he alleged that he requested but was denied treatment for that pain. Thus, on these facts, the Court cannot conclude that Plaintiff has plausibly alleged a deliberate indifference claim based upon any prolonged pain that he suffered due to the one-day delay in medical treatment.
E. Plaintiff's Denial of Medical Care Claim from the Cancelling of the Spine Injection Procedure
Finally, Plaintiff brings a claim for denial of medical treatment in violation of the Eighth Amendment against Defendant Unknown Administrative Agent related to the cancelling of Plaintiff's spinal injection procedure. [#36 at ¶¶ 36-42] Defendants argue that Plaintiff has failed to plausibly plead either the objective or subjective component of his deliberate indifference claim. [#45 at 10-11] Because the Court agrees that Plaintiff has failed to plausibly allege the subjective component of this deliberate indifference claim, the Court presumes without deciding that Plaintiff has plausibly alleged the objective component of this claim.
Once again, the subjective component of a deliberate indifference claim “requires the plaintiff to present evidence of the prison official's culpable state of mind.” Mata, 427 F.3d at 751. At the pleading stage, the plaintiff must plausibly allege “that a defendant ‘knows of and disregards an excessive risk to inmate health or safety.'” Paugh, 47 F.4th at 1156 (quoting Strain v. Delgado, 977 F.3d 984, 990 (10th Cir. 2020)). For this, the plaintiff must plausibly allege “that a defendant was both ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed],' and that the defendant actually drew the inference.” Id.
Here, Plaintiff has merely alleged that a medical specialist requested a spinal injection procedure, the procedure was approved, and Defendant Unknown Administrative Agent cancelled the procedure. [#36 at ¶¶ 38-40] Beyond conclusory statements that Defendant Unknown Administrative Agent acted “capriciously and arbitrarily,” Plaintiff does not offer any rationale for the conclusion. [Id. at ¶ 40] Indeed, Plaintiff does not even allege that the cancellation of this procedure caused any additional damage to Plaintiff's medical condition, let alone that it placed Plaintiff at a substantial risk of harm of which Defendant Unknown Administrative Agent was aware. As a result, the Court concludes that Plaintiff has failed to plausibly allege the subjective component of his deliberate indifference claim against Defendant Unknown Administrative Agent. The Court thus respectfully RECOMMENDS that the Motion be GRANTED with respect to Plaintiff's deliberate indifference Eighth Amendment claim against Defendants related to Defendant Unknown Administrative Agent cancelling Plaintiff's spinal injection procedure and that Claim Three be DISMISSED WITHOUT PREJUDICE. See Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendants' Motion to Dismiss Plaintiff's Amended Complaint [#45] be GRANTED. The Court further RECOMMENDS that, if the district court adopts this Recommendation, Plaintiff be GRANTED leave to file a Second Amended Complaint within 21 days of any Order adopting this Recommendation and that Plaintiff's failure to do so will result in dismissal of this matter.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).