Filed December 24, 2019
. . . Since we conclude that the allegations in [plaintiff]’s complaint are sufficient to state an Eighth Amendment claim against [defendants], we reverse the district court’s finding that these defendants are entitled to qualified immunity. Case 1:19-cv-02437-DDD-NYW Document 36 Filed 12/24/19 USDC Colorado Page 32 of 45 33 Kikumura v. Osagie, 461 F.3d 1269, 1296-97 (10th Cir. 2006); see also Al-Turki, 762 F.3d at 1195 (rejecting claim of qualified immunity by a prison nurse who was alleged to be liable for deliberate indifference as a gatekeeper because she learned the plaintiff was in immense pain and did not see him or have him seen by other medical personnel, despite nurse’s assertion that she should be immune from liability because the exact scenario presented in that case had not previously been the subject of a Tenth Circuit decision). Further, a constitutional right can be clearly established “by the weight of authority from other courts.”
Filed April 13, 2011
The PLRA’s exhaustion requirement applies to “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); Kikumura v. Osagie, 461 F.3d 1269, 1281 (10th Cir. 2006). Exhaustion is mandatory and district courts are not authorized to dispense with the requirement.
Filed September 27, 2007
Finally, for the same reasons expressed in the discussion pertaining to Ulrath and Massie, McKinney’s grievances sufficiently placed Crosby on notice that the policies Crosby originated at FSP -- with respect to using gas to “discipline” inmates who “misbehaved” -- led to the inevitable result in which a “frequent flier” (i.e. McKinney) was repeatedly gassed with chemical agents and suffered adverse health consequences. Despite this warning, neither Crosby nor Rathmann changed any policies at FSP, and McKinney was subsequently gassed six more times.592 590 See id; Doc. 294 at p.5. 591 Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002), accord Kikumura v. Osagie, 461 F.3d 1269, 1283 (10th Cir. 2006); Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004). 592 See Ex. 42. Case 3:04-cv-00917-TJC-JRK Document 325 Filed 09/27/07 Page 125 of 126 120 CONCLUSION Because Plaintiffs have met their burden of submitting evidence establishing that each Defendant in this case may be held liable for their individual actions with regard to Plaintiffs’ gassings with chemical agents, and have established that material facts remain in dispute that entitle Plaintiffs to proceed to trial on their claims for damages and injunctive relief, they respectfully request that the Court deny Defendants’ motions for summary judgment.
Filed February 6, 2007
“Dismissal of a pro se complaint for failure to state a claim is proper only 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.” Kikumura v. Osagie, 461 F.3d 1269, 1291-92 (10th Cir. 2006). ARGUMENT A. The ING Defendants Are Immune From Liability Under 26 U.S.C. § 6332(e).