Spears v. Lappin

Full title: ADOLPH SPEARS, Plaintiff, v. DIRECTOR OF THE FEDERAL BUREAU OF PRISONS…

Court: United States District Court, D. Colorado

Date published: Jul 9, 2008

Civil Action No. 07-cv-02043-WDM-CBS (D. Colo. Jul. 9, 2008)

Opinion

Civil Action No. 07-cv-02043-WDM-CBS.

July 9, 2008

Matthew F. Hale, Florence, CO, pro se.

William George Pharo, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER

CRAIG SHAFFER, Magistrate Judge

This civil action came before the court for a Status Conference on July 9, 2008. Pursuant to the Order of Reference dated January 10, 2008 (doc. # 11), this civil action was referred to the Magistrate Judge to, inter alia, "[h]ear and determine pretrial matters, including discovery and other non-dispositive motions . . . and submit proposed findings of fact and recommendations for rulings on dispositive motions." The court having reviewed the status of the case, the pending matters, the entire case file, and the applicable law and being sufficiently advised in the premises, IT IS ORDERED that:

1. "Defendants' Motion for Leave to Respond on Behalf of Harley Lappin, the Director of the Federal Bureau of Prisons" to Dismiss (filed May 7, 2008) (doc. # 18) is GRANTED and the Motion to Dismiss (doc. # 19) is accepted for filing as of May 7, 2008.

2. Attached to this Order, the court provides Mr. Spears copies of Hale v. Ashcroft, 2007 WL 2350150 (D. Colo. August 15, 2007), Barnes v. Jones, 2007 WL 628060 (D. Colo. Feb. 26, 2007), and Florence v. Rios, 2008 WL 538677 (D. Colo. Feb. 25, 2008). 3.

A further telephone status conference shall be held on July 21, 2008 at 1:30 p.m. in Courtroom A-402, Fourth Floor, Alfred A. Arraj United States Courthouse, 901 Nineteenth Street, Denver, Colorado. Mr. Spears and/or his case manager shall arrange for his participation via telephone and shall call (303) 844-2117 at the scheduled time. Civil Case No. 06-cv-00541-REB-KLM.

United States District Court, D. Colorado. Matthew F. HALE, Plaintiff, v. John ASHCROFT, individually and in his official capacity, et al., Defendants. August 15, 2007

CRAIG SHAFFER, Magistrate Judge

ORDER RE: MOTIONS TO DISMISS AND MOTION TO ARRANGE FOR PERSONAL SERVICE OF DEFENDANTS

*1 The matters before me are (1) Defendants' Partial Motion To Dismiss [# 27], filed September 11, 2006; (2) F.A. Bierschbach's Motion To Dismiss [# 31], filed October 2, 2006; (3) Harvey Church's Motion To Dismiss [# 33], filed October 18, 2006; (4) Michael Nalley's Motion To Dismiss [# 36], filed October 20, 2006; and (5) plaintiff's Motion To Direct the Clerk To Arrange for the Personal Service of the Defendants [# 28], filed September 28, 2006.^FN1 I grant the motions to dismiss. I grant the motion to arrange for personal service in part with respect to defendant, R. Wiley, but otherwise deny that motion.

FN1. Although these matters previously were referred to the United States Magistrate Judge for determination, with the consent of the magistrate judge, the orders of reference will be withdrawn herein.

I. JURISDICTION

I have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).

II. STANDARD OF REVIEW

Defendants' partial motion to dismiss raises the issue of Eleventh Amendment immunity, which implicates the court's subject matter jurisdiction and, thus, must be decided under the standards of Rule 12(b)(1). See Raccoon Recovery, LLC v. Navoi Mining and Metallurgical Kombinat, 244 F.Supp.2d 1130, 1136 (D.Colo. 2002). A motion to dismiss under Fed.R.Civ.P. 12(b)(1) may consist of either a facial or a factual attack on the complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Because defendants' motion presents a facial attack, I must accept the allegations of the complaint as true. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994); Fritz v. Colorado, 223 F.Supp.2d 1197, 1199 (D.Colo. 2002).

Defendant Bierschbach's and defendant Nalley's motions, as well as the remaining individual defendants' response to plaintiff's motion to arrange for personal service on them, raise issues of personal jurisdiction. Because the issue of personal jurisdiction is contested, the burden is on plaintiff to prove that jurisdiction exists as to each defendant. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). Nevertheless, at this early stage of the litigation, that burden is light, and when, as here, the motion to dismiss is decided on the papers, plaintiff need make only a prima facie showing that jurisdiction exists. Id. The non-conclusory averments of the complaint must be taken as true to the extent they are not contradicted by affidavit or declaration, and all factual disputes must be resolved in favor of plaintiff. Id.

Defendant Church's motion to dismiss turns on qualified immunity issues, which are determined under the standards of Rule 12(b)(6). When ruling on a motion to dismiss pursuant to this rule, I must determine whether the allegations of the complaint are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993); see also Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826 (2003). I review the complaint to determine whether it "'contains enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, ___ F.3d ___, 2007 WL 1969681 at *3 (10th Cir. July 9, 2007) at *3 (quoting Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1969, 1974, 167 L.Ed.2d 929 (2007)). "Thus, 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." Id. (emphases in original).^FN2

FN2. Until recently, the standard of review for a motion under Rule 12(b)(6) was whether "'it appear[ed] beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The Tenth Circuit has noted that the relationship between the standard announced in Bell Atlantic Corp. and the Supreme Court's contemporaneous decision in Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007), in which the Supreme Court upheld the notice pleading standards of Rule 8(a)(2), is not entirely clear. See AIvarado v. KOB-TV, L.L.C., ___ F.3d ___, 2007 WL 2019752 at *3 n. 2 (10th Cir. July 13, 2007). Nevertheless, my decision with respect to the 12(b)(6) motion would be the same under either the old Conley v. Gibson "no set of facts" standard or the Bell Atlantic Corp. plausibility standard. See id.

*2 Under all these standards of review, I remain mindful that plaintiff is proceeding pro se, and thus his "pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Garrett v. Selby Connor Maddux Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Accordingly, I will overlook structural and syntactical errors and irregularities in plaintiff's pleadings. Id. Nevertheless, it is not my proper role to serve as plaintiff's attorney by constructing arguments he has not advanced or searching the record for facts he has not brought forth in support of his claims. Id.

III. ANALYSIS

Plaintiff is a federal prisoner currently housed at the United States maximum security penitentiary in Florence, Colorado ("ADX"). Finding that there was a "substantial risk that [plaintiff's] communications or contacts with other persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons," 28 C.F.R. § 501.3(c), the Attorney General requested that plaintiff be placed under certain "Special Administrative Measures" ("SAMs"). The SAMs, which substantially restrict plaintiff's access to the mails, the media, the telephone, and visitors, have been extended each year since they were first implemented on February 24, 2003. Additionally, on April 7, 2005, after plaintiff was found to knowingly have violated the SAMs by dictating a statement to his mother for publication to the news media, his telephone and visitation privileges were revoked for one year.^FN3 When the SAMs next came up for review in March, 2006, they were expanded to restrict plaintiff's non-legal correspondence.^FN4 Separately from but in addition to the SAMs, plaintiff further complains that ADX x-rays his meals, does not allow him physical access to a law library, and prohibits him from viewing any television channel that broadcasts news or from receiving any newspaper other than USA Today.

FN3. In addition, 13 days of good time credit were disallowed.

FN4. Plaintiff may send no more than three 8% p 1/2 "x 11" double-sided pieces of paper once per calender week to a single recipient, and may correspond only to immediate family members.

In this lawsuit plaintiff alleges violations of his rights to due process and equal protection under the Fifth Amendment, to free speech and free association under the First Amendment, and to be free from unreasonable searches under the Fourth Amendment, as well as a claim for conspiracy to violate his civil rights under 42 U.S.C. § 1985(3), and a state law claim of battery. He seeks declaratory, monetary, and injunctive relief.

A. ELEVENTH AMENDMENT

Plaintiff concedes that the Eleventh Amendment bars his constitutional claims for monetary damages against the Federal Bureau of Investigation, the Federal Bureau of Prisons ("BOP"), and ADX, as well as against the nine individual defendants to the extent they are sued in their official capacities. Accordingly, Claims One, Two, Three, Four, and Five will be dismissed to the extent they seek money damages against the institutional defendants and the individual defendants in their official capacities.

*3 Defendants further claim that the pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., the United States is the only proper defendant with respect to Claim Six, which alleges a state law tort claim of battery against defendants the BOP, ADX, Church, and Wiley. See F.D.I.C. v. Meyer, 510 U.S. 471, 476-77, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994). It is clear that the BOP and ADX cannot be sued in their own names on this claim. 28 U.S.C. § 2679(a). Moreover, with respect to the individual defendants, the Attorney General has provided the certification contemplated by 28 U.S.C. § 2679(d)(1) (see Notice of Substitution [# 34], filed October 18, 2006), and the Clerk of the Court has taken the steps necessary to add the United States as a party (see Docket Annotation [# 39], filed November 3, 2006). See also Salmon v. Schwarz, 948 F.2d 1131, 1143 (10th Cir. 1991) ("Upon such certification, the substitution becomes mandatory."); Robinson v. Marano, 79 F.Supp.2d 96, 97 (N.D.N.Y. 2000) ("The substitution of the United States as the defendant is an automatic consequence of the U.S. Attorney's . . . certification."). Thus, the motion will be granted on this ground as well.

B. PERSONAL JURISDICTION

Defendant Bierschbach and defendant Nalley both contend that they lack sufficient minimum contacts with the State of Colorado to support the exercise of personal jurisdiction over them in their individual capacities in this district. Similarly, in their response to plaintiff's motion seeking to effectuate personal service on them, defendants Ashcroft, Gonzales, Watts, Lappin, and Hawk Sawyer argue also that the motion should be denied because of lack of personal jurisdiction over them in this district.^FN5 I agree.

FN5. The government does not object to personal service on defendant Wiley, who is a resident of Colorado.

Plaintiff attempts to make out a case for personal jurisdiction over these defendants by arguing that each of them authorized or implemented policies or restrictions knowing that the effects of those policies would be felt by him in Colorado. There are at least two infirmities in this argument. First, the mere fortuity of a plaintiff's physical location alone is never sufficient to establish the minimum contacts with the forum state necessary to assert personal jurisdiction. See Trierweiler v. Croxton Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir. 1996) ("[T]he mere foreseeability of causing injury in another state is insufficient to establish the required contacts.") (citation and internal quotation marks omitted); see also Hill v. Pugh, 75 Fed. Ap-px. 715, 719 (10th Cir. Sept. 11, 2003) ("It is not reasonable to suggest that federal prison officials may be hauled into court simply because they have regional and national supervisory responsibilities over facilities within a forum state."). Second, the actions on which plaintiff relies in support of his allegations of personal jurisdiction all clearly were taken by defendants in their capacities as federal officials and employees.^FN6 Such actions do not suffice to establish minimum contacts for purposes of an individual capacity suit against a federal employee. Trujillo v. Williams, 465 F.3d 1210, 1218 n. 9 (10th Cir. 2006) (citing Ali v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir. 2002)).

FN6. This pertains equally to plaintiff's assertion that defendant Nalley visits ADX regularly, as there is no allegation that he does so other than in his official role as Regional Director of the BOP. See Crowder v. Whalen, 1998 WL 8232 at *2 (10th Cir. Jan. 12, 1998).

*4 For these reasons, defendants Bierschbach's and Nalley's motions to dismiss will be granted and the claims against them in their individual capacities dismissed. Similarly, plaintiff's motion will be denied insofar as it seeks to require the Clerk or Marshal to personally serve defendants Ashcroft, Gonzales, Watts, Lapin, and Hawk Sawyer. Moreover, because this court lacks personal juris-diction over defendants Ashcroft, Gonzales, Watts, Lapin, and Hawk Sawyer, I will sua sponte dismiss plaintiff's claims against those defendants in their individual capacities.

C. QUALIFIED IMMUNITY

Finally, defendant Church, a captain at ADX, moves to dismiss Claims Two, Four, and Five as against him in his individual capacity pursuant to Rule 12(b)(6), arguing that he is entitled to qualified immunity from suit.^FN7 Government officials are immune from civil liability unless their actions violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert. denied, 534 U.S. 840, 122 S.Ct. 96, 151 L.Ed.2d 56 (2001). To overcome this immunity, plaintiff must establish both that Church violated his rights under federal law and that such rights were clearly established at the time of the violation. Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999).

FN7. Church also was originally named as a defendant with respect to Claim Six. As noted above, the United States has been substituted as the defendant on that state law tort claim as required by the FTCA. See supra, Pt. III(A).

Claim Two of plaintiff's complaint alleges that Church has violated plaintiff's rights under the Fifth Amendment to equal protection of the laws "by treating me unequally and adversely as a result of the SAM."(Complaint at 19, ¶ 35.) Under this same rubric, he also complains of Church's involvement in x-raying his food. "Equal protection is essentially a direction that all persons similarly situated should be treated alike." Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 675, 166 L.Ed.2d 526 (2006) (citation and internal quotation marks omitted). Thus, to make out a claim, plaintiff must be able to demonstrate that he is similarly situated to inmates who are not subject to SAMs or whose food is not x-rayed.^FN8 See id. at 1261; Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). This he cannot do. An inmate subject to the restrictions under which plaintiff labors is not similarly situated to inmates in the general prison population. "'[A prisoner's] claim that there are no relevant differences between him and other inmates that reasonably might account for their different treatment is not plausible or arguable.'" Fogle, 435 F.3d at 1261 (quoting Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994)) (alteration in Fogle). Plaintiff's inability to plead a plausible constitutional violation in the first instance dooms this claim. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991).

FN8. This is the group that plaintiff himself insists is the relevant comparator.

Yet even if plaintiff could establish that the SAMs and the x-raying of his food violate his equal protection rights, Church would be entitled to qualified immunity as to this claim. I have found no case from any federal court anywhere in the country that has even considered the question whether imposing SAMs on an inmate or exposing an inmate's food to x-rays violates his Fifth Amendment equal protection rights, much less clearly establishing that it does so. See Murrell v. School District No. 1, Denver, Colorado, 186 F.3d 1238, 1251 (10th Cir. 1999) (law is considered clearly established when "a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of authority from other circuits [has] found the law to be as the plaintiff maintains"). The motion, therefore, must be granted with respect to this claim.

*5 Plaintiff's Claim Four asserts a violation of the Fourth Amendment against Church, claiming that his directive that all plaintiff's meals be x-rayed constitutes an unreasonable search. (Complaint at 27, ¶ 59.) Church counters that plaintiff has no reasonable expectation of privacy in the food he is served before it even reaches him, relying on the Supreme Court's decision in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The Tenth Circuit, however, has distinguished the rule of Hudson, in which the Court held that an inmate has not privacy interest in his prison cell, from the earlier decision of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), noting that "[t]he prisoner's privacy interest in the integrity of his own person is still preserved under Wolfish[.]" Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). I do not discount the possibility that an inmate might be able to establish that contamination of his food violates his privacy interest in bodily integrity in some circumstances.

Nevertheless, it is not plausible to think that plaintiff could establish that x-raying his meals contaminates his food or otherwise exposes him to any unreasonable health risk. See USDA Issues Final Rule on Meat and Poultry Irradiation, Food Safety and Inspection Service, United States Department of Agriculture (Dec. 1999), available at http://www.fsis.usda.gov/OA/background/irradfinal.htm (noting that exposure of meat and poultry to radiant energy, such as produced by x-rays, "does not increase human exposure to radiation since the energy used is not strong enough to cause food to become radioactive"). Moreover, as with his Fifth Amendment claim, even if plaintiff could show that x-raying does, in fact, contaminate his food, Church would be entitled to qualified immunity, as there is no case clearly establishing that such conduct violates the Fourth Amendment. This claim, therefore, must be dismissed as against Church as well.

Plaintiff's inability to state a viable substantive constitutional claim against Church is likewise fatal to his Claim Five for conspiracy to violate his federally protected rights under 42 U.S.C. § 1985(3). See Great American Federal Savings Loan Association v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979) ("Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates.").^FN9 In addition, to the extent plaintiff attempts to state a viable conspiracy claim under any other "proper statute" (see Complaint at 29), such claim would fail as well. One key component of any conspiracy claim, whether under statute or at common law, is an agreement between two or more people. Plaintiff's complaint alleges no facts that could reasonably be construed as suggesting that Church entered into any such agreement.

FN9. Moreover, the complaint fails to aver facts to support the necessary inference that any such conspiracy was motivated by class-based, invidious, discriminatory animus. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993), cert. denied, 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994).

THEREFORE, IT IS ORDERED as follows:

*6 1. That with the consent of the magistrate judge, the orders of reference with respect to Defendants' Partial Motion To Dismiss [# 27], filed September 11, 2006; F.A. Bierschbach's Motion To Dismiss [# 31], filed October 2, 2006; Harvey Church's Motion To Dismiss [# 33], filed October 18, 2006; Michael Nalley's Motion To Dismiss [# 36], filed October 20, 2006; and plaintiff's Motion To Direct the Clerk To Arrange for the Personal Service of the Defendants [# 28], filed September 28, 2006, are WITHDRAWN;

2. That Defendants' Partial Motion To Dismiss [# 27], filed September 11, 2006, is GRANTED;

3. That plaintiff's Claims One, Two, Three, Four, and Five are DISMISSED WITH PREJUDICE against defendants the Federal Bureau of Investigation, U.S. Penitentiary-Max, the Federal Bureau of Prisons, and the individual defendants in their official capacities to the extent those claims seek the recovery of money damages against those defendants;

4. That plaintiff's Claim Six is DISMISSED WITH PREJUDICE as against defendants U.S. Penitentiary-Max, the Federal Bureau of Prisons, Harvey Church, and R. Wiley;

5. That the United States is SUBSTITUTED as the party defendant with respect to plaintiff's Claim Six;

6. That the case caption is AMENDED to add the United States as a party defendant;

7. That F.A. Bierschbach's Motion To Dismiss [# 31], filed October 2, 2006, is GRANTED;

8. That plaintiff's claims against defendant F.A. Bierschbach in his individual capacity are DISMISSED WITHOUT PREJUDICE;

9. That Michael Nalley's Motion To Dismiss [# 36], filed October 20, 2006, is GRANTED;

10. That plaintiff's claims against defendant Michael Nalley in his individual capacity are DISMISSED WITHOUT PREJUDICE;

11. That Harvey Church's Motion To Dismiss [# 33], filed October 18, 2006, is GRANTED;

12. That plaintiff's claims against defendant Harvey Church in his individual capacity are DISMISSED WITH PREJUDICE;

13. That plaintiff's Motion To Direct the Clerk To Arrange for the Personal Service of the Defendants [# 28], filed September 28, 2006, is GRANTED IN PART and DENIED IN PART;

14. That the motion is GRANTED with respect to plaintiff's request to effect service of process on defendant R. Wiley;

15. That if appropriate, the Clerk SHALL ATTEMPT TO OBTAIN a waiver of service from defendant R. Wiley;

16. That if the Clerk is unable to obtain a waiver of service from R. Wiley, then the United States Marshal SHALL SERVE a copy of the complaint, summons, and all other orders on defendant R. Wiley; provided, furthermore, that if appropriate, the Marshal shall first attempt to obtain a waiver of service of these documents pursuant to Fed.R.Civ.P. 4(d);

17. That all costs of service SHALL BE ADVANCED by the United States;

18. That after service of process, R. Wiley or his counsel SHALL RESPOND to the complaint as provided in the Federal Rules of Civil Procedure;

*7 19. That in all other respects, plaintiff's motion [# 28] is DENIED;

20. That plaintiff's claims against defendants John Ashcroft, Alberto Gonzales, Harrell Watts, Harley Lappin, and Kathleen Hawk Sawyer in their individual capacities are DISMISSED WITHOUT PREJUDICE; and

21. That the case caption IS AMENDED to delete the reference "individually" following the names of defendants John Ashcroft, Alberto Gonzales, Harrell Watts, Michael Nalley, F.A. Bierschbach, Harley Lappin, Harvey Church, and Kathleen Hawk Sawyer to reflect that plaintiff's claims against these defendants in their individual capacities have been dismissed. Civil Action No. 06-cv-00180-WYD-MEH.

United States District Court, D. Colorado. Herman BARNES, Jr., Plaintiff, v. D. Jones; L. Leyba; R. Wiley; M. Nailey; and H. Watts, Defendant(s). February 26, 2007 Herman Barnes, Jr., Florence, CO, pro se.

J. Benedict Garcia, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER AFFIRMING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

*1 THIS MATTER is before the Court on Defendants' Motion to Dismiss [# 45], filed July 20, 2006. The matter was referred to Magistrate Judge Michael E. Hegarty for a Recommendation by Order of Reference dated March 22, 2006. Magistrate Judge Hegarty issued a Recommendation on December 15, 2006, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED.R.CIV.P. 72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Hegarty recommends therein that the Defendants' Motion to Dismiss be "granted and that the Amended Complaint be dismissed in its entirety against all Defendants." (See Recommendation at 11.)

On December 28, 2006, Plaintiff filed a timely Objection, which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made because the nature of the matter is dispositive. FED.R.CIV.P. 72(b); 28 U.S.C. § 636(b)(1). For the reasons set forth below, the Defendants' Motion to Dismiss is granted.

II. STANDARD OF REVIEW

The purpose of a motion to dismiss is to decide if the pleadings outlined in the complaint are sufficient to state a claim. Pleadings of a pro se plaintiff should be liberally construed. Haines v. Kerner, 404 U.S. 520, 520-21 (1972). The Court, however, cannot act as an advocate for a pro se litigant and the litigant must still comply with the requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In ruling on a motion to dismiss, this Court must accept Plaintiff's well-pleaded allegations as true, and construe all reasonable inferences in favor of Plaintiff. Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A claim should be dismissed only where, without a doubt, the plaintiff could prove no set of facts in support of his claims that would entitle him to relief. Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988).

III. ANALYSIS

In his Objection, Plaintiff objects to five of Magistrate Judge Hegarty's recommendations. First, Plaintiff objects and claims that Magistrate Judge Hegarty failed to address the merits of Plaintiff's claim. (Objection at 1). Second, Plaintiff objects to Magistrate Judge Hegarty's conclusion that Plaintiff failed to state a violation of Plaintiff's Eighth Amendment rights. (Objection at 3-4.) Third, Plaintiff objects to Magistrate Judge Hegarty's conclusion that the Colorado long-arm statute does not provide the Plaintiff personal jurisdiction over Defendants Nailey and Watts. (Objection at 56.) Fourth, Plaintiff objects to Magistrate Judge Hegarty's conclusion that sovereign immunity bars a suit against Defendants in their official-capacity. (Objection at 6). Fifth, Plaintiff objects to Magistrate Judge Hegarty's conclusion that the amended complaint must be dismissed against Defendants Nailey and Watts because Plaintiff failed to exhaust his administrative remedies against those Defendants. (Objection at 5.) I will address each of these objections in turn.

A. Failure to Address the Plaintiff's Claims

*2 Plaintiff's first objection is without merit. Plaintiff is on a no meat diet, but occasionally receives meat in his diabetic sack. Plaintiff contends that his claim is based on the "no meat diet policy, which states that no meat diets should [not] contain any flesh."(Objection at 1.) The no meat policy, however, does not state that the diabetic sack should not contain meat. In his Recommendation, Magistrate Judge Hegarty notes that absent a food allergy, there is no authority that states that "simply including in a meal a piece of food that an inmate should not be eating is a constitutional violation."(Recommendation at 9.) Therefore, Magistrate Judge Hegarty's Recommendation addresses Plaintiff's claim, and Plaintiff's claim is properly dismissed.

B. Eighth Amendment Claim

Plaintiff's second objection is also without merit. In his Recommendation, Magistrate Judge Hegarty recognizes that a "prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment," pursuant to the principles set forth in Estelle v. Gamble, 429 U.S. 97, 104 (1976). (Recommendation at 8.) The Supreme Court has determined that although accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the Eighth Amendment, "deliberate indifference to serious medical needs of prisoners" violates the Eighth Amendment because it constitutes unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Estelle, 429 U.S. at 104. The Tenth Circuit has held that in order to state a deliberate indifference claim for constitutionally inadequate conditions of confinement, the Plaintiff must allege: (1) a deprivation of his rights that is objectively, sufficiently serious; and (2) that an official knew of and disregarded a risk to the Plaintiff's health. Mata v. Saiz, 427 F.3d 745 (10th. Cir. 2005).

In McCabe v. Aramark Food Servs., 2002 U.S. Dist. LEXIS 264 (N.D.Ill. 2002), a prisoner was diagnosed with diabetes and placed on a diabetic diet. Although the food services group was advised of the prisoner's diet and assured him that he would receive diabetic meals, the prisoner alleged that he never received a diabetic meal. Id. at 2. As a result, the prisoner was unable to consume the meals provided to him, which put him at a substantial risk of suffering hypoglycemia or other medical complications from diabetes. Id. The court held that a diabetic's need to control his diet is aarising sufficient medical need for the purposes of Eighth Amendment analysis. Id. Additionally, the court found that the food services group was aware of the prisoner's medically prescribed diabetic meals and failed to provide him with food that would meet his dietary requirements. Id. at 5.

In the case at hand, Plaintiff's medical need is objectively, sufficiently serious to satisfy the first prong of an Eighth Amendment claim. Similar to the prisoner in McCabe, the Plaintiff suffers from diabetes which, if not treated properly with diet and insulin, could result in hypoglycemia or other medical complications. However, Plaintiff does not claim that he was not provided any diabetic meals. Rather, Plaintiff claims that his meals occasionally contain meat which he chooses not to consume. The Plaintiff never asserts that he is allergic to meat or would be harmed by consuming meat. Further, nothing in the Record indicates that the Defendants disregarded a serious medical risk. The Record indicates that the Defendants' believed that the medical needs of the Plaintiff would "be fulfilled by consuming the other items (bread) in the diabetic sacks that contain meat."(Compl. at 20). Therefore, any risk to the Plaintiff's health resulted from his own choice not to eat the food contained in his diabetic sack. Accordingly, Magistrate Judge Hegarty's Recommendation that Plaintiff's Eighth Amendment claim should be dismissed is affirmed.

C. The Colorado Long-Arm Statute and Personal Jurisdiction.

*3 Plaintiff's third objection is without merit. Plaintiff claims that the Colorado long-arm statute does not give Defendants Nailey and Watts "the right to violate [Board of Prison] policies without cause."(Objection at 6.) Plaintiff's argument, however, is inapposite because the Colorado longarm statute only pertains to the court's jurisdiction over the Defendants', rather than the Defendants' alleged Board of Prison policy violation. Defendants Nailey and Watts reside in Kansas City, Kansas, and Washington, D.C. respectively. In his Recommendation, Magistrate Judge Hegarty correctly notes that Defendants Nailey and Watts' administrative denials are insufficient to establish personal jurisdiction in Colorado. (Recommendation at 6.) I agree and affirm Magistrate Judge Hegarty's conclusion that Defendants Nailey and Watts should be dismissed from the case for lack of personal jurisdiction.

D. Failure to Exhaust Administrative Remedies

The Supreme Court recently held that failure to exhaust administrative remedies under the PLRA is an affirmative defense, rather than a pleading requirement. Jones v. Bock, ___ S.Ct. ___, 2007 (No. 05-7058, 05-7142) at 31. Magistrate Judge Hegarty's Recommendation was filed prior to this opinion. Applying the reasoning and conclusions of Jones, Plaintiff is not required to plead exhaustion in his Complaint. Id. However, in light of my determination that Plaintiff fails to state a claim for which relief could be granted, I need not address this objection.

E. Sovereign Immunity

The Plaintiff's fifth objection is without merit. A plaintiff can seek damages against a defendant in the defendant's individual-capacity or the defendant's official-capacity. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Damages in individual-capacity suits are satisfied by the defendant's personal assets. Id. Whereas, damages in official-capacity suits are satisfied by a government entity's assets. Id. Therefore, an official-capacity suit is treated as a suit against the government entity, regardless of whether the government entity is a named party to the claim. Id. at 166.Additionally, a government entity is entitled to sovereign immunity under the Eleventh Amendment. Id. at 167.

The Plaintiff sought damages against the Defendants' in their official-capacities but not in their individual-capacities. Therefore, sovereign immunity applies to Plaintiff's claims. In his Objection, Plaintiff asserts that because the Defendants were deliberately indifferent to his medical condition, the Defendants are not entitled to sovereign immunity. (Objection at 6.) Sovereign immunity, however, bars suits against a government entity, regardless of whether a government official was deliberately indifferent to an individual's medical condition. Thus, Magistrate Judge Hegarty's conclusion that "the claim for damages must be dismissed" because the Plaintiff's claims are "explicitly against Defendants in their official capacities" is proper. (Recommendation at 6.)

IV. CONCLUSION

*4 Accordingly, for the reasons stated above, it is

ORDERED that the Recommendation on the Motion to Dismiss [# 61], filed December 15, 2006, is AFFIRMED AND ADOPTED. In accordance therewith, it is

FURTHER ORDERED that the Motion to Dismiss [# 45] is GRANTED, and the Amended Complaint be DISMISSED WITH PREJUDICE.

RECOMMENDATION ON MOTION TO DISMISS

Before the Court is Defendants' Motion to Dismiss (Docket # 45), to which the Plaintiff has responded in opposition. The Motion has been referred to this Court. Oral argument would not materially assist the Court in resolving this matter. Based upon the discussion below, the Court recommends that the Motion to Dismiss be granted.

Be advised that all parties shall have ten (10) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED.R.CIV.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 67683 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within ten (10) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir. 1986).

I. FACTS

Plaintiff is incarcerated at the Federal Correctional Complex in Florence, Colorado. He is diabetic. He states he is on a "no meat diet." AMENDED COMPLAINT, Docket # 4, p. 4. He is receiving appropriate meals that contain no meat. Id. However, he receives a snack during the day as well, and it, on occasion, contains some meat product. Id. He does not allege that the Bureau of Prisons requires him to eat the meat, nor does he contend that aside from the meat, the remaining contents of the occasional meat-included snack sack is inadequate to meet his dietary needs. Indeed, he does not even contend that occasional ingestion of meat is harmful to him, but only that he is on a meatless diet. He merely argues that he should be entitled to consume everything in his snack sack. Id. at p. 9. To his Amended Complaint, Plaintiff attaches the Warden's response to his administrative remedy, in which the Warden explains that Plaintiff's dietary needs will be met by consuming the remainder of the snack, excluding the meat. Id. at p. 19.Plaintiff also references a Bureau of Prisons' "Guidelines for Medical Diets/Self-Selection on Mainline," dated October 7, 1996, Program Statement 4700.04, Chapter 8, stating that a diabetic snack should be "1 cup skim milk" and "1 serving non-sugar-coated dry cereal." He seeks an order requiring the government to refrain from placing meat in his snack sack, along with $250,000 from each Defendant in their "official capacity." Id. at p. 14.

*5 Defendants move to dismiss on various grounds under Fed.R.Civ.P. 12(b)(1), 12(b)(2), and 12(b)(6), as discussed below.

II. ANALYSIS

A. Standard of Review

Defendants do not delineate the dismissal standards for the various arguments of their motion. However, notable in Defendants' motion is the fact that they have raised the issue of the official capacity claims against them being barred under principles of sovereign immunity and also, as an alternative argument with regard to the individual capacity claims, that they are entitled to qualified immunity. "[A] motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)." Neiberger v. Hawkins, 150 F.Supp.2d 1118, 1120 (D.Colo. 2001). Additionally, a motion to dismiss based on qualified immunity is treated as a motion to dismiss for lack of subject matter jurisdiction. See Meyers v. Colo. Dep't of Human Serv., 2003 WL 1826166 (10th Cir. 2003) (unpublished opinion). A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

"Motions to dismiss pursuant to Rule 12(b)(1) may take two forms." Amoco Production Co. v. Aspen Group, 8 F.Supp.2d 1249, 1251 (D.Colo. 1998). First, a party may attack the facial sufficiency of the complaint and the court must accept the allegations of the complaint as true. Id. Second, a party may attack the factual assertions regarding subject matter jurisdiction through affidavits and other documents and the court "has wide discretion to allow affidavits, other documents and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)." A 12(b)(1) motion . . . can include references to evidence extraneous to the complaint without converting it to a Rule 56 motion." Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir. 1987) The Defendants' Motion To Dismiss challenges the factual assertions underlying Plaintiff's Amended Complaint.

While the arguments concerning sovereign and qualified immunity by the Defendants was not specifically raised under Rule 12(b)(1), the Court has a duty to determine subject matter jurisdiction sua sponte. See Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1988); see also Fed.R.Civ.P. 12(h)(3) ("[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action").

*6 In a Motion to Dismiss pursuant to Rule 12(b)(2), the Plaintiff bears the burden of establishing that personal jurisdiction exists. Soma Medical Intern. v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999). Where a court chooses not to conduct an evidentiary hearing, the Plaintiff need only make a prima facie showing of jurisdiction by showing, through affidavits or otherwise, facts that, if true, would support jurisdiction over the Defendants. Omi Holdings, Inc. v. Royal Ins. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). The allegations of a complaint must be taken as true, unless contradicted by other evidence, Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984), and to the extend that the defense evidence contradict allegations in the complaint or opposing affidavits, all disputes must be resolved in the Plaintiff's favor and the Plaintiff's prima facie showing is sufficient. Id.

With regard to the arguments raised by the Defendants which fit under the standards of Rule 12(b)(6), a dismissal for failure to state a claim under Rule 12(b)(6) is appropriate only when it is apparent that a plaintiff can prove no set of facts which would entitle him to relief. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In evaluating a 12(b)(6) motion to dismiss, "all well-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving party." Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The issue in reviewing the sufficiency of Plaintiff's Amended Complaint is not whether Plaintiff will prevail, but whether Plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), (overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Although Plaintiff does not need to state each element of his claim precisely, he must plead minimal factual allegations on those material elements that must be proved. See Fed.R.Civ.P. 8(a); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Plaintiff in this case is proceeding without an attorney. A federal court must construe a prose plaintiff's "pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 117374 (10th Cir. 1997) (quotations and citations omitted). The court should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. A dismissal "without affording the plaintiff notice or an opportunity to amend is proper only 'when it is patently obvious that 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. Damages Against Defendants In Their Official Capacities

*7 Defendants allege that Plaintiff may not seek damages against the Defendants in their official capacities under principles of sovereign immunity. Plaintiff does not dispute this. This principle of law is correct. Marino v. Mayger, 118 F.ed Appx. 393, 405 (10th Cir. 2004) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). The only claim for damages is explicitly against Defendants in their official capacities. See AMENDED COMPLAINT, Docket # 4, p. 14. Therefore, the claim for damages must be dismissed.

C. Personal Jurisdiction Over Defendants Nalley And Watts

Defendants contend that Defendants Nalley (from Kansas City, Kansas) and Watts (from Washington, D.C.) have insufficient contacts with the District of Colorado to satisfy the long-arm statute, and support their contention by affidavit. DEFENDANTS' MOTION TO DISMISS, Docket # 45, Exhibits 1 and 2. Plaintiff admits that the only contact these Defendants have with this jurisdiction is their connection with his administrative appeals. PLAINTIFF (SIC) RESPONSE TO DEFENDANT(SIC) MOTION TO DISMISS, Docket # 53, p. 3. The Court agrees with the Defendants that the mere act of denial an administrative appeal is insufficient to establish personal jurisdiction. See, e.g., Durham v. Lappin, No. 05cv01282, 2006 WL 2724091 (D.Colo. Sept. 21, 2006) (involving Defendant Watts); Harnage v. Swanson, No. 053098, 2006 WL 269974 (D.Kan. Feb. 3, 2006) (involving Defendant Watts). Accordingly, the Defendants' motion in this regard should be granted, and Defendants Watts and Nalley should be dismissed from this action for lack of personal jurisdiction.

D. Failure To Exhaust Administrative Remedies

Defendants contend that Plaintiff failed to exhaust administrative remedies because he did not file any administrative remedy with regard to Defendants Watts and Nalley, and under the total exhaustion rule, the entire case should be dismissed without prejudice. Plaintiff does not address this argument in his response.

The Tenth Circuit has applied a total exhaustion rule in prison condition cases, stating that if a prisoner files a complaint which contains one or more unexhausted claims, "the district court ordinarily must dismiss the entire action without prejudice." Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004). However, while the federal appellate court recognized that full exhaustion furthers the purposes of the Prison Litigation Reform Act (" PLRA"), it also made note of statutory authority for the dismissal of underlying claims without first requiring the exhaustion of administrative remedies when "a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." Id. at 1190 n. 13 (quoting 42 U.S.C. § 1997e(c)(2)). The record herein establishes that the Plaintiff has not administratively exhausted the claims which he brings in this lawsuit against all Defendants because he did not file any administrative remedy with regard to Defendants Watts and Nalley which would have alerted prison authorities to the fact that they were involved or role they played. See Kikumura v. Osagie, 461 F.3d 1269, 128586 (10th Cir. 2006) (a prisoner must provide as much relevant information as he reasonably can in the administrative grievance process, to include the identity and/or involvement of any alleged wrongdoers, to afford prison officials the opportunity to address the complaint internally). However, as analyzed and set forth below, the Plaintiff has also failed to state a claim upon which relief can be granted as to these same claims which the remaining named Defendants do not dispute that he has exhausted against them. Therefore, dismissal of these claims without requiring full exhaustion against all Defendants is warranted under the provisions of 42 U.S.C. § 1997e(c)(2), and Defendants' motion in this regard should be deemed moot.

E. Failure To State A Claim/Qualified Immunity

*8 The Court agrees with Defendants that Plaintiff does not state a violation of his Eighth Amendment right to be free from deliberate indifference to his serious medical needs. A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97,104 Amendment's (1976). The test for constitutional liability of prison officials "involves both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Plaintiff must first allege a deprivation of his rights that is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834. The Court will accept that diabetes is a serious medical need. This leads to the subjective prong of the deliberate indifference test.

The subjective prong of the deliberate indifference test requires the plaintiff to present evidence of the prison official's culpable state of mind. See Estelle, 429 U.S. at 106, 97 S.Ct. 285. The subjective component is satisfied if the official "knows of and disregards an excessive risk to inmate health or safety; 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." Farmer, 511 U.S. at 837,114 S.Ct. 1970. A prison medical professional who serves "solely . . . as a gatekeeper for other medical personnel capable of treating the condition" may be held liable under the deliberate indifference standard if she "delays or refuses to fulfill that gatekeeper role." Sealock, 218 F.3d at 1211; see also Estelle, 429 U.S. at 104105, 97 S.Ct. 285 (deliberate indifference is manifested by prison personnel "in intentionally denying or delaying access to medical care").

Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). There is no evidence or even allegation that any official knew of and disregarded any risk, let alone an excessive one, to Plaintiff's health. The records Plaintiff attaches to his Amended Complaint demonstrate that prison officials believed that even when Plaintiff received the occasional snack sack with a piece of meat in it, his medical needs would be met even if the meat were not eaten. See Hall, 935 F.2d at 1112 (materials attached to a complaint and incorporated into it may be considered without converting the Rule 12(b)(6) motion to one of summary judgment). Plaintiff does not allege that he was ever at risk by having a piece of meat occasionally included in his snack sack.

Furthermore, Defendants are entitled to qualified immunity unless the alleged constitutional right was clearly established at the time of the violation. Mata. at 749.Here, the alleged constitutional right was a snack sack that contained no meat whatsoever. The Court cannot find any authority for the proposition that, absent an allegation of allergies ( e.g., to peanuts, etc.), simply including in a meal a piece of food that an inmate should not be eating is a constitutional violation. Thus, the law was not clearly established in Plaintiff's favor at the time of the alleged violation here. Cf.Baird v. Alameida, 407 F.Supp.2d 1134 (C.D.Cal. 2005) (finding that the plaintiff did not allege that acts or omissions are sufficient harmful to evidence deliberate indifference to serious medical needs in regards to a prisoner on a diabetic diet who was fed food that he thought was harmful but that Defendants alleged was not).

*9 Even viewing the facts of the Amended Complaint in a light most favorable to the Plaintiff, he has failed to state a claim for violation of a constitutionally protected right with regard to the claims set forth in his Amended Complaint, and therefore, the individual Defendants in this case are entitled to qualified immunity with regard to these claims. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (failure to make out a violation of a clearly established constitutional right is a failure to satisfy necessary threshold inquiry in determination of qualified immunity claim).

F. Possibility of Amendment

Affording the Plaintiff notice or an opportunity to again amend his pleading in this case would not assist him in this matter. Plaintiff previously amended his complaint as a matter of course under Fed.R.Civ.P. 15(a), by the filing of his Amended Complaint on February 14, 2006. Accordingly, Plaintiff must seek leave of Court or consent of the Defendants to further amend his pleadings. See Fed.R.Civ.P. 15(a). Defendants have not given consent in this regard, and therefore, leave of court would be necessary for such an amendment to be properly filed.

Leave to amend "shall be freely given when justice so requires." FED.R.CIV.P. 15(a). Though courts are expected to heed this mandate, Foman v. Davis, 371 U.S. 178, 182 (1962), the matter is still committed to the court's sound discretion, Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).

'Liberality in amendment is important to assure a party a fair opportunity to present his claims and defenses,' but 'equal attention should be given to the proposition that there must be an end finally to a particular litigation.'

Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967) (citation omitted)).

Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.

Frank v. U.S.West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).

In the Tenth Circuit, courts may deny leave for un-timeliness or undue delay without a showing of prejudice to the opposing party. Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). Courts evaluate the reasons for the delay and assess whether they amount to excusable neglect. Gates Learjet Corp., 823 F.2d at 387. Untimeliness is sufficient cause for denying leave, especially when the movant offers no adequate explanation for the delay. Frank, 3 F.3d at 136566. Courts may deny leave if the movant "'knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint.'" Pallottino v. City of Rio Rancho, 31 F.3d at 1027 (quoting State Distributors, Inc. v. Glenmore Distilleries, 738 F.2d 405, 416 (10th Cir. 1984) (citations omitted)).

*10 Based on the record before the Court, I find that granting leave to the Plaintiff to amend his Complaint a second time would be untimely, that Plaintiff did not diligently pursue the basis of any such amendments, and that the facts behind such amendments would have been known to the Plaintiff at the initiation of this action. Following the filing of a dispositive motion which challenges a plaintiff's claims, the court must be cautious in considering additional facts or legal theories especially when the plaintiff is on notice that the allegations in the complaint are in some way deficient. See, generally, Hayes v. Whitman, 264 F.3d 1017, 102526 (10th Cir. 2001). Finally, Plaintiff has proceeded in this Court on one set of facts instead of any other facts of which the Plaintiff would have known, amounting to a choice made by the Plaintiff, not excusable neglect. Accordingly, refusing the Plaintiff an opportunity to further amend his Amended Complaint to add any new claims and defendants would be justified.

III. CONCLUSION

Based on the foregoing, and the pleadings on file herein, it is hereby recommended that Defendants' Motion to Dismiss [Filed July 20, 2006; Docket # 45] be granted and that the Amended Complaint be dismissed in its entirety against all Defendants. Civil No. 07-cv-00380-REB-KLM.

United States District Court, D. Colorado. George E. FLORENCE, Plaintiff, v. H.A. RIOS, Jr., Michael K. Nalley, and Harrell Watts, Defendants. February 25, 2008 George E. Florence, Coleman, FL, pro se.

Terry Fox, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

*1 This matter is before me on: 1) Defendant Rios' Motion To Dismiss [# 22], filed June 12, 2007; 2) Defendant Michael K. Nalley's Motion To Dismiss [# 23], filed June 12, 2007; 3) Defendant Harrell Watts' Motion To Dismiss [# 24], filed June 12, 2007; 4) the Recommendation of United States Magistrate Judge [# 36], filed October 12, 2007; and 5) Plaintiff's Affidavit in Support of His Opposition To Recommendation of United States Magistrate Judge Kristen L. Mix [# 37], filed October 26, 2007. I overrule the objection, adopt the recommendation, and grant the defendants' motions to dismiss.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable case law. In addition, because the plaintiff is proceeding pro se, I have construed his filings generously and with the leniency due pro se litigants. See Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The magistrate judge's recommendation is detailed and well-reasoned. The plaintiff's objections are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [# 36], filed October 12, 2007, is APPROVED AND ADOPTED as an order of this court;

2. That the Plaintiff's Affidavit in Support of His Opposition To Recommendation of United States Magistrate Judge Kristen L. Mix [# 37], filed October 26, 2007, is OVERRULED;

3. That Defendant Rios' Motion To Dismiss [# 22], filed June 12, 2007, is GRANTED;

4. That Defendant Michael K. Nalley's Motion To Dismiss [# 23], filed June 12, 2007, is GRANTED;

5. That Defendant Harrell Watts' Motion To Dismiss [# 24], filed June 12, 2007, is GRANTED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Defendant H.A. Rios' Motion to Dismiss [Docket No. 22; filed June 12, 2007], Defendant Michael K. Nalley's Motion to Dismiss [Docket No. 23; filed June 12, 2007], and Defendant Harrell Watts' Motion to Dismiss [Docket No. 24; failed June 12, 2007]. Plaintiff was given until July 16, 2007 to file his responses to the motions to dismiss, but failed to do so. Minute Order, Docket No. 26; filed June 13, 2007. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. COLO.L.Civ.R. 72.1.C., this matter has been referred to this Court for recommendation. For the reasons set forth below, the Court recommends that the Motions be GRANTED.

I. Statement of the Case

*2 At the time of filing, Plaintiff George E. Florence was incarcerated at the Federal Correctional Institute in Florence, Colorado ("FCI").^FN1 Plaintiff filed a pro se prisoner complaint pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)^FN2, alleging that Defendants denied his request for a back pain medication, Amitriptyline, and heart medication, Nitroglycerin, and conducted an improper and inadequate independent investigation of Plaintiff's medication needs. Plaintiff alleges that these failures violated his Eighth and Ninth Amendment rights.

FN1. Plaintiff is currently incarcerated at the Federal Correctional Institution-Low, located in Coleman, Florida.

FN2. In his Amended Complaint [Docket No. 5; filed March 12, 2007], under the "Jurisdiction" section, Plaintiff actually alleged jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. However, as Plaintiff is incarcerated in a federal facility, he is incorrect that these statutes would provide the basis for jurisdiction.

Plaintiff contends that on August 16, 2004, while performing his assigned duties in the ADX food service department, he slipped on a wet floor and sustained a back injury. Plaintiff then required a five-day hospitalization. Plaintiff maintains that upon his discharge from the hospital, his doctor provided him with a prescription for a medication called Amitriptyline, to manage his chronic back pain.^FN3 Plaintiff states that he was denied his back pain medication by prison officials on December 27, 2004. He also contends that he was denied his heart medication, Nitroglycerin, but does not state any dates relevant to the denial of his Nitroglycerin. Further, it is not clear whether or on what date Plaintiff began receiving his medication again. Plaintiff appears to be complaining about the physical pain and mental anguish caused by the alleged delay in receiving his medications. He claims that Defendants "knew of and blatantly disregarded the excessive risk to Plaintiff 's health or safety, by failing to take the reasonable measure of granting in a timely manner the required back and heart medications to abate it." Amended Complaint, p. 11 (emphasis in original). Plaintiff requests that judgment be entered for him against each named Defendant in the amount of $33,000,000.00, consisting of $13,000,000.00 in actual damages and $20,000,000.00 in punitive damages.

FN3. The prescription for Amitriptyline was actually provided by the Clinical Director of FCI, as a substitute for the non-formulary drug Neurontin, which was originally prescribed by Plaintiff's doctor. Plaintiff's Amended Complaint, Ex.3.

Each Defendant has filed a Motion to Dismiss. In support of his motion, Defendant H.A. Rios asserts four justifications: (1) collateral estoppel bars Plaintiff's Eighth Amendment claims; (2) Defendant is entitled to qualified immunity on any claim raised against him in his individual capacity; (3) Defendant is entitled to sovereign immunity on claims raised against him in his official capacity; and (4) Plaintiff fails to state a claim for Ninth Amendment relief. In support of their motions, Defendants Harrell Watts and Michael K. Nalley assert five identical justifications: (1) this Court does not have personal jurisdiction over them, as they lack the required contacts with the State of Colorado; (2) collateral estoppel bars Plaintiff's Eighth Amendment claims; (3) Defendants are entitled to qualified immunity on any claim raised against them in their individual capacity; (4) Defendants are entitled to sovereign immunity on claims raised against them in their official capacity; and (5) Plaintiff fails to state a claim for Ninth Amendment relief.

II. Discussion A. Legal Standards Applicable to Plaintiff's claims 1. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)

*3 Subject matter jurisdiction is the court's authority to hear a case and cannot be waived. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). When reviewing a facial attack on a complaint pursuant to Fed.R.Civ.P. 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Here, Defendants assert that the Court lacks subject matter jurisdiction because Plaintiff's Amended Complaint, on its face, is barred by the doctrines of qualified and sovereign immunity.

2. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2)

As a court of limited jurisdiction, this Court may only exercise jurisdiction over non-resident Defendants Nalley and Watts if (1) the long-arm statute of Colorado permits personal jurisdiction in this case; and (2) the exercise of personal jurisdiction in Colorado comports with the Due Process Clause of the United States Constitution. Pro Axess, Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1276 (10th Cir. 2005). The Supreme Court of Colorado interprets Colorado's long-arm statute "to confer the maximum jurisdiction permitted by the due process clauses of the United States and Colorado constitutions." Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo. 2005). Therefore, a due process analysis of jurisdiction in this case will also satisfy Colorado's long-arm statute.

Due process first requires that the defendant have "minimum contacts" with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). This requirement protects a defendant from "being subject to the binding judgment of a forum with which he has established no meaningful 'contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted). The defendant must have "fair warning that a particular activity may subject [him] to jurisdiction." Id. Minimum contacts may be established either generally or specifically:

Depending on the level of contact, personal jurisdiction may be either specific, in which case personal jurisdiction is based on specific activities or contacts the defendant has with the forum state, or it may be general, in which case jurisdiction is based upon "continuous or systematic contacts" between the defendant and the forum state. Under either theory of jurisdiction, the defendant's contact must be substantial enough so that exercising personal jurisdiction "does not offend traditional notions of fair play and substantial justice."

United States v. Botefuhr, 309 F.3d 1263, 1271-72 (10th Cir. 2002) (citations omitted). Here, Defendants Nalley and Watts assert that this Court lacks personal jurisdiction over them, as they do not have the required minimum contacts with the State of Colorado.

3. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

When deciding a Motion to Dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197 (2007). Courts should look to the specific allegations of the complaint to determine whether they plausibly support a legal claim for relief. Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). That is, a complaint must include "enough facts to state a claim to relief that is plausible on its face." TOM Services, Inc. v. Qwest Corp., 493 F.3d 1225, 1235 (10th Cir. 2007). The complaint must sufficiently allege facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed. Lane v. Simon, 495 F.3d 1182 (10th Cir. 2007). As the Tenth Circuit has explained, "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. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174 (10th Cir. 2007). Here, Defendants assert that Plaintiff fails to state a claim for Ninth Amendment relief.

*4 Finally, because Plaintiff here is proceeding pro se, the Court construes his pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). Even so, Plaintiff still retains "the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This burden remains because a "pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Id.

B. Analysis

As a preliminary matter, Plaintiff's failure to respond to the Motions may be grounds for dismissal of his case because Plaintiff was directed by the Court to file his responses to the Motions by a certain date. See Fed.R.Civ.P. 41(b); Conkle v. Potter, 352 F.3d 1333, 1337 (10th Cir. 2003); Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Ordinarily, the time to respond is governed by the Local Rules, here D.C. Colo. L. Civ. R. 7.1(C), which allows twenty (20) days to respond to a motion to dismiss. However, in the case at hand, Plaintiff was directed to respond by Court order and allowed an additional fourteen (14) days after the deadline provided by Local Rule 7.1(C) in which to do so. Minute Order, Docket No. 26; filed June 13, 2007. Defendant's Motions clearly state that the requested relief is dismissal of Plaintiff's action. As such, dismissal may be appropriate based on Plaintiff's failure to follow the Court's Order.

However, due to the judicial system's strong preference for resolving cases on their merits, the Court considers the other assertions made by the Defendants in support of their Motions.^FN4

FN4. Although dismissal may be contemplated by Fed.R.Civ.P. 41(b), Defendants did not move for this result. Further, while some district court local rules within the Tenth Circuit authorize dismissal based solely on a failure to respond, the District of Colorado Local Civil Rules do not specify that failure to respond to a motion may be deemed as consent to its entry. See e.g. D.C.N.M. L. Civ. R. 7.5(b); D.C. Kan. L. Civ. R. 7.4. In any event, when dealing with a pro se plaintiff, the Tenth Circuit has held that it is error to dismiss based solely on the pro se plaintiff's failure to respond to the motion to dismiss without also considering the merits of the motion. Persik v. Manpower, Inc., 85 Fed. Appx. 127, 130 (10th Cir. 2003) (unpublished decision).

1. Personal Jurisdiction

Defendants Nalley and Watts contend that the Court lacks personal jurisdiction over them. Defendant Nalley, the Regional Director for the Federal Bureau of Prison's North Central Regional Office, lives and works in Kansas. Nalley's Motion to Dismiss, Ex. B, p. 1. Defendant Nalley argues that he does not have primary responsibility for inmates at FCI, and has never had primary responsibility for the medical care provided to FCI inmates. Nalley's Motion to Dismiss, p. 4, ¶ 3. Defendant Nalley alleges that his "sole connection to this case is as the Regional Director, who usually decides mid-level appeals." Nalley's Motion to Dismiss, p. 2, ¶ 1. Defendant Watts, the National Inmate Appeals Administrator for the United States Department of Justice, Federal Bureau of Prisons, lives and works in Washington, D.C. Watts' Motion to Dismiss, Ex. B, p. 1. Defendant Watts argues that he does not have primary responsibility for inmates at FCI, and has never had primary responsibility for the conditions of confinement or medical care provided to Plaintiff. Nalley's Motion to Dismiss, p. 4, ¶ 3. Defendant Watts alleges that his "sole connection to this case is as the reviewer of Plaintiff's third level administrative appeal." Watts' Motion to Dismiss, p. 2, ¶ 1.

*5 Case law supports Defendant Watts and Nalley's arguments that this Court does not have personal jurisdiction over them, as they lack the required minimum contacts with Colorado to satisfy Due Process. See, e.g., Durham v. Lappin, 2006 WL 2724091 (D.Colo. 2006) (finding no personal jurisdiction over regional directors who signed off on denials of the plaintiff's grievances); Cuoco v. Hurley, 2000 WL 1375273 (D.Colo. 2000) (finding no personal jurisdiction over regional director who reviewed the plaintiff's appeal). The Court, therefore, recommends that claims against Defendants Nalley and Watts, both in their individual and official capacities, be DISMISSED without prejudice.

Defendant Rios does not dispute that this Court has personal jurisdiction over him. Although Defendant Rios is not the current Warden of FCI, he served as Warden during the time period when Plaintiff filed his requests for administrative remedies. Rios' Motion to Dismiss, Ex. B, p. 1, ¶ 2-3. Thus, the Court addresses Defendant Rios' arguments regarding dismissal of Plaintiff's claims against him.

2. Collateral Estoppel

Defendant Rios argues that the doctrine of collateral estoppel bars Plaintiff's Eighth Amendment claim. The Supreme Court has defined collateral estoppel as, "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). The Tenth Circuit has found that the following criteria must be present for collateral estoppel to apply: "(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." U.S. v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992).

Defendant asserts that Plaintiff has filed two^FN5 previous complaints with this court; Florence v. Barrios, et al., 06-cv-00798-ZLW (D.Colo., filed April 26, 2006) ("2006 case") and Florence v. Kendig, et al., 05-cv-01778-REB-PAC (D.Colo., filed October 5, 2005) ("2005 case").^FN6 The District Court dismissed Plaintiff's 2006 case for failure to exhaust administrative remedies, which dismissal was affirmed by the Tenth Circuit Court of Appeals. Defendant's Motion, Ex. G; Ex. H. However, Plaintiff's 2005 case resulted in a dismissal on the merits of Plaintiff's Eighth Amendment claims. Defendant's Motion, Ex. E. It is this 2005 case that Defendant alleges creates the collateral estoppel of Plaintiff's claims in the instant case. In Plaintiff's 2005 case, he requested a preliminary injunction "compelling caption named Defendants to provide Plaintiff's prescribed medication Gabepentin (Neurovin). . . . " Defendant's Motion, Ex. D, p. 8. In the 2005 case, Plaintiff complained about actions taken by other defendants, wherein the defendants substituted the pain medication Amitriptyline for the medication Neurontin.^FN7 The reason for this substitution was that Neurontin was not available from the prison pharmacy, i.e., it was "non-formulary". As the District Court stated in its Order dismissing the case, "[t]he facts alleged in the complaint establish nothing more than a disagreement concerning the particular pain medication to be provided to the plaintiff." Defendant's Motion, Ex. E, p. 3. Defendant contends that "[c]omparison of the claims and facts in the prior Complaints with the present Complaint shows that the current Complaint is but a sub-set of the claims [Plaintiff] previously sought-al-beit unsuccessfully-to advance." Defendant's Motion, p. 6, ¶ 3.

FN5. Indeed, Plaintiff has filed more than two complaints with this Court related to his accident on August 16, 2004. See Florence v. Decker, et al., 05-cv-00383-ZLW (dismissed without prejudice for failure to pay filing fee); Florence v. Velasquez, et al., 05-cv-00651-OES (dismissed for failure to comply with Fed.R.Civ.P. 8);and Florence v. Decker, at al., 06-cv-00178-REB-PAC (dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6)).

FN6. Defendant occasionally incorrectly identifies this case as 05-cv-00179 or 06-cv-00179.

FN7. Also identified as "Neurovin".

i. Elements of Collateral Estoppel

*6 First, for collateral estoppel to apply, the issue previously decided must be identical with the one presented in the action in question. Rogers, 960 F.2d at 1508. In Plaintiff's 2005 case, the issue was whether Defendants' substitution of Amitryptyline, a formulary drug, for Neurontin, a non-formulary drug, violated Plaintiff's Eighth Amendment rights. This issue was fully briefed and decided on the merits. However, the issue in the case at hand is whether the Defendant's alleged delay in providing Plaintiff with Amitryptyline and Nitroglycerin violated his Eighth Amendment rights.^FN8 Plaintiff does not even mention or complain of Amitryptyline being substituted for Neurontin in his Amended Amended Complaint. These issues are not identical, as is required for the doctrine of collateral estoppel to apply. Rogers, 960 F.2d at 1508. As the first element of collateral estoppel is not met, this Court declines to address the remaining three elements. This Court finds that Defendant is incorrect that the doctrine of collateral estoppel would bar Plaintiff's claims in the case at hand.

FN8. Defendant incorrectly states the true issue in this case several times. He states, "Rios's alleged failure to grant Plaintiff the relief he requested (the specific medication he wanted) is alleged to have violated the Plaintiff's Eighth and Ninth Amendment rights." Defendant's Motion, p. 2. However, a simple reading of Plaintiff's Amended Complaint shows that Plaintiff complains of the delays he faced in receiving the medications prescribed to him by prison officials, and not of the denial of a specific medication originally prescribed to him by his doctor. Amended Complaint, p. 4.

3. Qualified Immunity

Defendant Rios next moves to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1), arguing that he is entitled to qualified immunity on any claim raised against him in his individual capacity.^FN9 As federal officials, defendants may be held individually liable for actions taken under color of federal authority. See Bivens, 403 U.S. at 395. Under Bivens, a plaintiff may not establish liability against a federal official in his official capacity. See Simmat v. United States Bureau of Prison, 413 F.3d 1225, 1233-34 (10th Cir. 2005). Instead, an action against a federal official in his official capacity is construed as an action against the United States. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). Further, a suit for damages against the United States is barred by sovereign immunity unless such immunity has been waived. Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989).

FN9. Defendant appears to be confused as to whether he is truly being sued in his individual capacity. In his Motion, Defendant states "[t]he claims against [Defendant] seem to be directed at actions taken in his official capacity." Defendant's Motion, p. 8, footnote 4. However, in Plaintiff's Request for Relief, he states several times that the Defendants are to be sued in their individual capacities. Amended Complaint, p. 1.

Qualified immunity is a defense to a Bivens action. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Harlow, the Court explained that qualified immunity shields government officials from liability for damages incurred in the performance of discretionary functions as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. Courts use an objective standard, evaluating the official's conduct in light of the state of the law at the time of the purported constitutional or statutory violation. Id. Qualified immunity is a defense from suit, not just liability. Saucier v. Katz, 533 U.S. 194, 200-01 (2001).

Upon the Defendant's assertion of a qualified immunity defense, the Plaintiff has a two-part burden. Plaintiff must come forward with facts or allegations that the Defendant's conduct was a violation of a clearly established constitutional or statutory right at the time of its occurrence, and that the violated right was "clearly established such that a reasonable person in the defendant's position would have known the conduct violated the right." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).

i. Elements of an Eighth Amendment Claim

*7 The Eighth Amendment is violated when a prison official acts with "deliberate indifference to [an inmate's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104-106 (1976). Deliberate indifference means that prison medical staff knew of the inmate's serious medical need, but intentionally disregarded an excessive risk of harm to the inmate, or that prison guards or medical staff intentionally prevented the inmate from receiving prescribed treatment or intentionally delayed or denied him access to medical care. Id.; Farmer v. Brennan, 511 U.S. 825, 834 (1994); Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006).

A claim of deliberate indifference has both objective and subjective components. Callahan, 471 F.3d at 1159. The objective component requires that harm suffered is "sufficiently serious" so as to implicate the Cruel and Unusual Punishment Clause. Id. (quoting Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006)). The subjective component requires that the plaintiff establish that the "defendant knew [plaintiff] faced a substantial risk of harm and disregarded that risk, 'by failing to take reasonable measures to abate it.'" Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Farmer, 511 U.S. at 847). Prison officials show deliberate indifference to serious medical needs when they deny, delay, or intentionally interfere with necessary medical care. Id. However, no constitutional claim is stated where a prisoner challenges only matters of medical judgment or otherwise expresses a mere difference of opinion concerning the appropriate course of treatment. Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992).

The question here is whether Plaintiff's allegations, if true, state a claim under the Eighth Amendment. Kikumura, 461 F.3d at 1291. Reading Plaintiff's Amended Complaint liberally, accepting all factual allegations in the pleading as true, and resolving all reasonable inferences in Plaintiff's favor, this Court finds that Plaintiff fails to allege facts proving an Eighth Amendment violation.

The Court must first determine whether Defendant's delay in providing medication to Plaintiff resulted in "sufficiently serious" harm, as Plaintiff claims. Callahan, 471 F.3d at 1159. Plaintiff alleges that due to the delay in receiving his medication, he "experience[d] great mental pain, suffering and anguish, thinking and believing that he would never obtain back pain medication to 'relieve the chronically physical pain that he perpetually lives with." Amended Complaint, p. 5. It is well established that "not every lapse in prison medical care will rise to the level of a constitutional violation." Estelle v. Gamble, 429 U.S. 97, 105-106 (1976). Although Plaintiff's condition is alleged to be severe, the Court must consider the frequency and duration of the delays to determine whether these incidents constitute sufficiently serious harm. Smith v. Carpenter, 316 F.3d 178, 185 (2nd Cir. 2003) (holding "[w]hen the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment, rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious'"). Plaintiff has not provided this Court with any information regarding the length of time or the numbers of times he was deprived of his pain or heart medication. None of his proffered exhibits provide this Court with any means to determine the applicable period or periods of time when his medication was delayed, nor the duration of such time periods. Plaintiff has failed to come forward with facts or allegations that the Defendant's conduct was a violation of a clearly established constitutional or statutory right at the time of its occurrence. Lawmaster, 125 F.3d at 1347. Although there is no doubt that suffering from chronic pain can and will result in sufficiently serious harm, Plaintiff has not alleged sufficient facts to survive a Motion to Dismiss. Accordingly, this Court recommends that Plaintiff's Eighth Amendment claim be DISMISSED.

4. Elements of a Ninth Amendment Claim

III. Conclusion

*8 Ninth Amended Complaint,Ninth NinthSee United States v. Bifield,702 F.2d 342349EighthNinthParnisi v. Colo. State Hosp., 1993 WL 118860NinthNinthDISMISSED. GRANTED, GRANTED, GRANTED.

FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), the parties have ten (10) days after service of this recommendation to serve and file specific, written objections. A party's failure to serve and file specific, written objections waives de novo review of the recommendation by the district judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party's objections to this 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. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996).