Brooks v. Colo. Dep't of Corr., David Oba, Patrick Blake, Angie Turner, Corr. Corp.

Decision Date17 October 2014
Docket NumberCivil Action No. 13-cv-02894-CBS
CourtU.S. District Court — District of Colorado


Magistrate Judge Shaffer

This matter comes before the court on a Motion to Dismiss in part (doc. #36) filed on June 13, 2014 by Defendants Colorado Department of Corrections ("CDOC"), Julie Russell, Kathy Howell, Tim Creany, Paul Cline, Lou Archuletta, David Tessiere, Rick Raemisch, Dolores Montoya, and Ron Wager (collectively "CDOC Defendants"). Also before the court is Plaintiff's Motion for Preliminary Injunction (doc #49), filed on August 7, 2014. Pursuant to the Order of Reference dated July 1, 2014, this civil action was referred to the Magistrate Judge "forall purposes" pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). (See Doc. #44). This court has carefully considered the motions and related briefing, the entire case file, the comments offered by the parties during the June 30, 2014 Scheduling Conference and July 17, 2014 Status Conference, and applicable case law. For the following reasons, I grant the CDOC Defendants' Motion to Dismiss with leave to amend the Eighth Amendment medical claim as asserted against Defendant Tessiere and deny Plaintiff's Motion for Preliminary Injunction.


Mr. Brooks, a pro se prisoner incarcerated at the Fremont Correctional Facility ("FCF") in Canon City, Colorado, filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming the CDOC Defendants as well as Defendants Patrick Blake, David Oba, Angie Turner, and Corrections Corporation of America ("CCA") (collectively "CCA Defendants") violated his Eighth Amendment right against cruel and unusual punishment, Fourteenth Amendment right to due process, First Amendment right for access to the courts, and withheld accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102 et seq..1 Plaintiff seeks declaratory relief, injunctive relief, and monetary relief in an unspecified amount.2

Plaintiff suffers from chronic ulcerative colitis, which causes inflammation and ulceration of the large intestine. Plaintiff endures symptoms ranging from weight loss and dehydration to intestinal bleeding, rectal bleeding, severe abdominal pain, and muscle atrophy, and is plagued by the persistent need to use the restroom which can result in his taking up to thirty bathroomtrips a day. (See Doc. #11 at p. 13). Plaintiff believes his condition can be managed with "appropriate medications, dietary supplementation, and exercise." (Doc. #11 at p. 13). Plaintiff was diagnosed with ulcerative colitis prior to entering the custody of CDOC in 2009, at which time he measured 6 feet, 3 inches and weighed 143 pounds. (See doc. #51 at ¶ 9, doc. #51-1 at ¶ 16).

Plaintiff was suffering from aggravated symptoms of ulcerative colitis when he was transferred to Bent County Correctional Facility ("BCCF") in May 2010. Plaintiff saw Defendant Oba in March 2011 after multiple requests to see a doctor, and was prescribed a gluten-free diet.3 (Doc. #11 at p. 20). Plaintiff alleges in his Motion for Preliminary Injunction that Defendant Oba also prescribed "ensure supplemental shakes" at this time. (Doc. #49 at pp. 1-2). Plaintiff was held at BCCF for approximately 20 months, during which time he claims he received woefully inadequate dental care and treatment for his medical condition.4

Plaintiff was transferred from BCCF to Colorado Territorial Correctional Facility ("CTCF") on February 9, 2012 and then to FCF on February 14, 2012. (Doc. #11 at pp. 33, 34). Plaintiff alleges he arrived at FCF in a debilitated state of health because he had not received a gluten-free diet while at CTCF. (Id. at p. 34). Plaintiff weighed 150 pounds at this time. (Doc. #51 at ¶ 12, Doc. #51-1 at ¶¶ 21, 25). Pursuant to FCF policy, upon arrival Plaintiff was placed under "lock down" in a holding cell for twenty-three hours daily for four to eight days while the prison registered him as an inmate. (Doc. #11 at p. 34). Following this process, and pursuant to FCF policy, Plaintiff was then kept under lock down until he received a work assignment. Plaintiff alleges that as a result, he could not prepare his own meals and was required to eatglutinous food that caused his intestine to bleed. Defendant Creany, the doctor at FCF who treated Plaintiff for ulcerative colitis, prescribed Prednisone to stop the internal bleeding. Plaintiff alleges he had no choice but to accept the medicine, though Prednisone causes joint pain and other adverse side effects in someone with chronic ulcerative colitis. (See doc. #11 at p. 35). Plaintiff began receiving a gluten-free diet on February 22, 2012, approximately one week after he arrived at FCF (id. at p. 37), and he was assigned a job in the prison's kitchen on March 30, 3012, approximately six weeks after arriving at FCF. (Id. at p. 42).

On February 27, 2012, Plaintiff began filing grievances regarding the prison's medical treatment. He complained that "[t]he attempted results of trying to treat my condition thus far have left me incontinent, bleeding, unable to sleep, unable to go to chow, unable to clean myself properly...I should not be in general population being this sick...I need to be put into a cell by myself." (Doc. #11 at pp. 38-9). He did not receive a response. At this time, Plaintiff also began requesting special drinks such as "Boost" and "Ensure" to supplement his gluten-free diet, extra toilet paper, and special passes that would allow him to exercise and eat at undesignated times. (Id. at pp. 37, 38, 39). Pursuant to this request, Defendant Montoya, former Health Services Administrator at FCF, authorized a medical pass in March 2012 that allowed Plaintiff to access the cafeteria if he missed a meal due to his condition. (Id. at p. 39). The medical pass expired after a few months and Defendant Montoya refused to re-issue the pass, or authorize a medical pass allowing Plaintiff to exercise outside of designated times. Defendants Russell, Howell, Creany, Cline, and Tessiere also refused to supply Plaintiff with extra toilet paper.

Plaintiff alleges his condition worsened during March and April 2012 because he did not receive nutritional supplements, his pain medication expired, and his prison job working in thekitchen exacerbated his symptoms. Plaintiff weighed between 144 pounds and 136 pounds in March 2012. (Id. at pp. 40, 42).

On April 2, 2012, Plaintiff undertook a 72-hour trip to visit Dr. Vahil, a gastronentologist, who recommended removing Plaintiff's large intestine. (Doc. #11 at p. 43). Thereafter in April 2012, Plaintiff began receiving Ensure per instruction from Defendant Howell, the CDOC Regional Director of Clinical Services, to Defendant Creany. Later that month, Defendant Creany revised Plaintiff's medical rating, which allowed Plaintiff to obtain a prison job that was more compatible with his condition. At the end of April 2012, CDOC surgeon, Dr. Tim Brown, recommended that Plaintiff undergo a proctocolectomy and temporary ileostomy. (Doc. #11 at p. 45). Plaintiff met with Defendant Creany in May 2012, to ask for another visit with Dr. Vahil to discuss alternative surgeries and treatments.

On June 8, 2012, Plaintiff attended a meeting with Defendants Creany, Montoya, and Howell, among other case managers, captains, and doctors, which was "specifically held to address Plaintiffs [sic] medical needs, as a response to his and his families [sic] concerns." Doc. #11 at p. 47). Plaintiff alleges that despite this meeting none of his concerns were addressed. In July 2012, Plaintiff received medication prescribed by Dr. Vahil and his condition "dramatically improved." Id. at p. 48. Plaintiff claims that his improvement notwithstanding, he still required a special meal and exercise pass and extra toilet paper, which Defendants refused to provide. Id. A November 19, 2012 blood test ordered by Dr. Vahil suggested that Plaintiff has Chron's disease.5

Plaintiff received a gluten-free diet and Ensure without issue until spring of 2013, when CDOC reconfigured the prison system's gluten-free diet, allegedly rendering the meals "inedible" and "calorically insufficient." (Doc. #11 at p. 51, Doc. #49 at ¶ 4). Plaintiff complained about the new diet to Defendant Creany, who arranged for Plaintiff to see FCF's registered dietician, Deborah Cranor, on May 6, 2013. (Doc #49 at ¶ 5, see also Doc. #11 at p. 51). Ms. Cranor reported that Plaintiff's ideal body weight is 190 pounds with a nineteen pound variance, and recommended that Plaintiff drink Ensure "if diet and snacks alone aren't enough to stabilize weight." (Doc. #49 at ¶ 6 and p. 18, see also Doc. #11 at p. 51). Plaintiff alleges that notwithstanding Ms. Cranor's recommendation, Defendant Tessiere, the Health Services Administrator at FCF, determined Plaintiff did not qualify for Ensure and instructed Defendant Creany not to supply it. (Doc. #11 at p. 51). Plaintiff met with nurse practitioner Sheryl McKim on May 21, 2013 to discuss his dietary needs and Ms. McKim advised Plaintiff that he "will probably be prescribed the ensure supplemental shakes at his next appointment in June." (See doc. #49 at ¶ 9 and p. 20). In August 2013, Defendant Creany again told Plaintiff that Defendant Tessiere had said Plaintiff "does not qualify for [Ensure]," but would authorize the supplemental shakes if Dr. Vahil recommended them. (Doc. #49 at ¶ 13).

Plaintiff's next visit with Dr. Vahil occurred almost one year later, on June 10, 2014, where Dr. Vahil...

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