Brown v. Idaho Dep't of Corr.
| Decision Date | 27 August 2014 |
| Docket Number | Civil Action No. 13-cv-01342-REB-KMT |
| Parties | ERIC BROWN #48834, Plaintiff, v. IDAHO DEPARTMENT OF CORRECTIONS, IDAHO ATTORNEY GENERAL'S OFFICE, VIRTUAL WARDEN TIM HIGGINS, WARDEN TIMOTHY WENGLER, ASSISTANT WARDEN TOM KESSLER, H.S.A. ACEL K. THACKER, CCHP, DR. KIRK STANDER, DR. DAVID AGLER, KIT CARSON CORRECTIONAL CENTER, WARDEN VANCE EVERETT, ASSISTANT WARDEN GREG WILKINSON, DR. SUSAN TIONA, H.S.A. JODI GRAY, CORRECTIONS CORPORATION OF AMERICA, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on Defendant Idaho Department of Corrections, Idaho Attorney General's Office, and Virtual Warden Tim Higgin's (hereinafter the "Idaho State Defendants") Motion to Dismiss (Doc. No. 66, filed Feb. 18, 2014) and incorporated Memorandum in Support (Doc. No. 66-1 [Memo]). For the following reasons, the Idaho State Defendants' Motion to Dismiss is GRANTED.
The following facts are taken from Plaintiff's First Amended Complaint (Doc. No. 25 [FAC]) and the parties briefing with respect to this Recommendation. Plaintiff is an inmate in the custody of the Idaho Department of Corrections (IDOC) who is currently incarcerated at Kit Carson Correctional Center (KCCC) in Burlington, Colorado. (FAC ¶ 1, 20.) Plaintiff alleges that the Idaho State Defendants—along with a number of other Colorado- and Idaho-based defendants—violated his constitutional rights, as well as his rights under the Americans with Disabilities Act, 42 U.S.C § 12181 et seq., by failing to adequately treat his migraine headaches. (See generally id.)
In June 1996, Plaintiff was sentenced to the care and custody of the IDOC. (Id. ¶ 19.) From August 1996 through December 1998, Plaintiff was housed at the IDOC's Idaho Correction Institution - Orofino. (Id. ¶ 20.) During that time, Plaintiff experienced the occasional severe headache, but did not seek medical care as he assumed the headaches were stress-related. (Id. ¶ 21.)
From December 1998 to January 2002, Plaintiff was housed at the IDOC's Idaho Maximum Security Institution (IMSI). (Id. ¶ 22.) While at IMSI, Plaintiff's headaches grew more severe and frequent, which prompted Plaintiff to contact the IMSI medical department. (Id. ¶ 23.) After trying various medications, the IMSI medical department ultimately determined that Imitrex effectively controlled the pain from Plaintiff's migraine headaches. (Id. ¶ 24.) Plaintiff was permitted to keep his Imitrex on his person. (Id.)
From January 2002 through the present, Plaintiff was housed at several private prisons operated by Defendant Corrections Corporation of America (CCA). (Id. ¶ 27.) During that time, Plaintiff was offered pain medications that failed to alleviate the pain associated with his migraines; was denied Imitrex as a "non-formulary" drug; and was thus forced to "self-medicate" by using pain medication available through the prison commissary, such as Tylenol and aspirin. (See, e.g. id. ¶¶ 28-30, 34-35, 53.)
Plaintiff also saw three neurologists for his migraine headaches. (Id. ¶¶ 42-45, 51-52.) The first two neurologists recommend a combination of a CAT scan, an MRI, a sleep study, a dietary change of avoiding processed meats, and a prescription of Elavil. (See id.) The third neurologist stated that it was necessary for Plaintiff to carry Imitrex on his person so that he could counteract migraines as soon as they began. (Id. ¶ 60.)
Plaintiff was never given a CAT scan or a sleep study and only had one MRI performed in March 2010. (Id. ¶¶ 46-47.) Plaintiff was also unable to avoid processed meats because it was a "staple" of the prison menu and the available vegetarian diet caused him "gastric distress." (Id. ¶ 50.) In addition, Elavil did not effectively alleviate Plaintiff's migraines and, further, caused him to be disoriented and inattentive. (Id. ¶ 53.)
In August 2012, Plaintiff was transferred to KCCC. (Id. ¶ 62.) Plaintiff met with Defendant Tiona, a doctor at KCCC, about his migraines and proposed that he (1) be issued Imitrex to be carried on his person, and (2) be allowed to wear tinted glasses or sunglasses indoors as the fluorescent lighting at KCCC contributed to his migraine headaches. (Id. ¶ 66.) Despite acknowledging that photophobia often contributes to migraine headaches, DefendantTiona did not approve Plaintiff's request for tinted glasses or sunglasses. (Id. ¶¶ 67-68.) Further, although Plaintiff was given a prescription for Imitrex, he has to go to the KCCC medical department and often wait for hours to obtain a dose of the medication, contrary to the neurologists advice that he take it immediately upon the presentation of migraine symptoms. (Id. ¶¶ 70-75.)
Plaintiff alleges he brought his medical issues to the attention of IDOC contract monitors who have toured KCCC. (Id. ¶ 79.) Plaintiff also alleges that he spoke with Defendant Higgins, the IDOC representative responsible for all IDOC inmates housed at KCCC, who told Plaintiff he would get back to him. (Id. ¶¶ 4, 80.) However, Defendant Higgins never followed-up with Plaintiff. (Id. ¶ 80.)
Plaintiff alleges that he suffers from chronic kidney disease and that it is a medical fact that prolonged use of aspirin and "NSAIDs"1 causes liver and/or kidney damage. (Id. ¶¶ 83-84.) Thus, he alleges that he suffered kidney damage by being effectively forced to take pain medication available through the commissary to treat his migraine headaches. (Id. ¶¶ 85-91.)
In his First Amended Complaint, filed August 21, 2013, Plaintiff asserts a claim for violations of his rights under the ADA, as well as claims pursuant to 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment rights.2 After being served on January 28,2014 (see Doc. Nos. 58-60), the Idaho State Defendants' Motion and Memorandum to Dismiss were filed on February 18, 2014 (see Mot. Dismiss; Memo). Plaintiff filed a Response on March 14, 2014 (Doc. No. 76) and the Idaho State Defendants filed a Reply on March 31, 2014 (Doc. No. 80). Accordingly, this matter is ripe for the court's review and recommendation.
Plaintiff is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ().
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) ().
A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where aparty challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a complaint for "lack of jurisdiction over the person." Fed. R. Civ. P. 12(b)(2). Plaintiff bears the burden of establishing personal jurisdiction over Defendants. OMI Holdings, Inc. v. Royal...
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