Jones v. Manguso et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 20-cv-01758-NYW-JPO
CHAD O’NEAL JONES,
Plaintiff,
v.
ROBERT MANGUSO, in his individual capacity,
TED LAURENCE, in his individual capacity,
CHARLES KUDLAUSKAS, in his individual capacity,
KATHERINE WOLFF, in her individual capacity,
MISTY ZADE, in her individual capacity,
ZACK ENGLEBERT, in his individual capacity,
PATRICIA RAND, in her individual capacity,
KATHRYN DRAKE, in her individual capacity,
KRISTYNA ROGERS, in her individual capacity,
MARLENE ARMENTA, in her individual capacity,
ANGIE TURNER, in her individual capacity,
TIMOTHY CREANY, in his individual capacity,
STEPHANIE ALVARADO, in her individual capacity,
DANNY SALAZAR, in his individual capacity,
JERRY ROARK, in his individual capacity,
DONNY BRITTON, in his individual capacity,
AUTUMN LEWIS, in her individual capacity, and
SUSAN WOLLART, in her individual capacity,1
Defendants.
______________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________
This matter is before the Court on two motions:
1 On March 22, 2021, Mr. Jones filed a Motion to Correct Spelling on Defendants Names,
which was subsequently granted, seeking to correct the spelling of “Ted Lawrence” to
“Ted Laurence” and “Briten” to “Donny Britton.” [Doc. 48; Doc. 53]. In addition, this Court
takes judicial notice of various filings on the docket reflecting the preferred spellings for
the names of other Defendants, see, e.g., [Doc. 20; Doc. 28; Doc. 35; Doc. 42], and
DIRECTS the Clerk of Court to AMEND the caption of this case accordingly.
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(1) 	The Motion for Summary Judgment filed by Plaintiff Chad O’Neal Jones
(“Plaintiff” or “Mr. Jones”), [Doc. 104, filed October 23, 2023]; and
(2) 	The CDOC Defendants’ Refiled Partial Motion to Dismiss Second Amended
Complaint under Fed. R. Civ. P. 12(b)(6) (the “CDOC Defendants’ Motion
for Partial Dismissal”) filed by Defendants Charles Kudlauskas (“Defendant
Kudlauskas” or “Mr. Kudlauskas”), Ted Laurence (“Defendant Laurence” or
“Mr. 	Laurence”), 	Robert 	Manguso 	(“Defendant 	Manguso” 	or 	“Mr.
Manguso”), Patricia Rand (“Defendant Rand” or “Dr. Rand”), Misty Zade
(“Defendant Zade” or “Ms. Zade”), Kathryn Drake (“Defendant Drake” or
“Lieutenant Drake”), Kristyna Rogers (“Defendant Rogers” or “Sergeant
Rogers”), Marlene Armenta (“Defendant Amenta” or “Sergeant Armenta”),
and Timothy Creany (“Defendant Creany” or “Dr. Creany”) (collectively, the
“CDOC Defendants”), [Doc. 108, filed November 1, 2023].
The CDOC Defendants have responded to Mr. Jones’s Motion for Summary
Judgment, [Doc. 112], as have Defendants Angie Turner (“Defendant Turner” or “Ms.
Turner”), Stephanie Alvarado (“Defendant Alvarado” or “Ms. Alvarado”), Danny Salazar
(“Defendant Salazar” or “Mr. Salazar”), Jerry Roark (“Defendant Roark” or “Warden
Roark”), Donny Britton (“Defendant Britton” or “Mr. Britton”), Autumn Lewis (“Defendant
Lewis” or “Ms. Lewis”), and Susan Wollart (“Defendant Wollart” or “Nurse Wollart”)
(collectively, the “BCCF Defendants”), [Doc. 111]. 	Mr. Jones did not file a reply brief in
support of his Motion for Summary Judgment, and the time to do so has expired.
D.C.COLO.LCivR 7.1(d). 	However, Mr. Jones responded in opposition to the CDOC
Defendants’ Motion for Partial Dismissal, [Doc. 115], and the CDOC Defendants filed a
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Reply, [Doc. 120]. Thus, both Motions are ripe for review. The Court has reviewed the
briefing on the Motions and the applicable case law and concludes that oral argument
would not materially assist in the resolution of this matter. For the reasons set forth herein,
the Motion for Summary Judgment is DENIED and the CDOC Defendants’ Motion for
Partial Dismissal is GRANTED.
BACKGROUND
Mr. Jones is an inmate in the custody of the Colorado Department of Corrections
(the “CDOC”). 	[Doc. 33 at 3]. 	On June 15, 2020, he initiated this civil action asserting
violations of his constitutional rights related to an alleged lack of appropriate medical
treatment while he was incarcerated at various CDOC facilities, including the Arkansas
Valley Correctional Facility (“AVCF”), the Buena Vista Correctional Facility (“BVCF”), and
the Fremont Correctional Facility (“FCF”) against various defendants. 	[Doc. 1]. 	The
Honorable Gordon P. Gallagher2 reviewed Plaintiff’s original Prisoner Complaint pursuant
to D.C.COLO.LCivR 8.1(b), determined it suffered from pleading deficiencies, and
directed Mr. Jones to file an amended pleading within 30 days. [Doc. 5]. After receiving
an extension of time, Mr. Jones filed his First Amended Complaint on August 31, 2020.
[Doc. 11]. In the First Amended Complaint, Mr. Jones alleged that he was diabetic, and
that throughout his custody at AVCF, BVCF, and FCF, the named Defendants—ranging
from the Governor of Colorado to various employees of the correctional facilities—ignored
his diabetes complications and denied him access to necessary medical care. [Id.].
2 Judge Gallagher has since been appointed a district judge for the United States District
Court for the District of Colorado.
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Judge Gallagher then reviewed Plaintiff’s First Amended Complaint and issued a
Recommendation (1) that Plaintiff’s claims against Jared Polis (“Defendant Polis”) and
Dean Williams (“Defendant Williams”), sued in their official capacities for monetary and
declaratory 	relief, be 	dismissed 	without 	prejudice 	based 	on 	Eleventh Amendment
immunity; (2) that the official capacity claims for prospective injunctive relief against
Defendants Polis and Williams be dismissed without prejudice because the requested
relief, i.e., a pardon, was not cognizable in a federal civil rights action; (3) that the civil
rights claims brought pursuant to 42 U.S.C. § 1983 against Defendants Polis, Williams,
Michelle Nelson, Anthony A. DeCesaro, P. Bueno, Gouty, Sean Pruitt, K. Frankmore, Jere
Hammer, Jason Lengerich, and Burtlow in their individual capacities be dismissed without
prejudice pursuant to Rule 8 of the Federal Rules of Civil Procedure; and (4) that the
§ 1983 	claims 	against 	Defendants 	Manguso, 	Laurence, 	Kudlauskas, 	Zade, 	Rand,
Katherine Wolff (“Defendant Wolff” or “Ms. Wolff”),3 and Zack Englebert (“Defendant
Englebert” or “Dr. Englebert”) be drawn to a presiding judge and, if appropriate, to a
magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a). 	[Doc. 17 at 9]. On October 6,
2020, the Honorable Lewis T. Babcock accepted the Recommendation.4 [Doc. 18].
3 On December 11, 2020, the CDOC notified the Court that the individual named as “Kathy
Wolfe” was “Katherine Wolff” and no longer employed by the CDOC. 	[Doc. 28]. 	The
CDOC provided her last known address, [id.], and the United States Marshals Service
was ordered to serve Ms. Wolff, [Doc. 27]. It does not appear that Defendant Wolff has
been served. 	This Court DIRECTS the United States Marshals to attempt service on
Defendant Wolff at the address provided and file the appropriate return of service once
the attempt is made.
4 Mr. Jones identified the Fourteenth Amendment as a basis for some of his claims against
these defendants. See, e.g., [Doc. 11 at 11, 16]. However, neither Judge Gallagher nor
Judge Babcock discussed the Fourteenth Amendment. [Doc. 17; Doc. 18]. In construing
Mr. Jones’s Second Amended Complaint liberally and drawing all inferences in his favor,
this Court interprets the pleading as implicating Plaintiff’s Fourteenth Amendment rights.
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This case was then randomly reassigned to the Honorable S. Kato Crews.5 [Doc.
18]. On October 7, 2020, the Clerk of Court mailed a Certificate of Service and copies of
the First Amended Complaint and associated service documents to the CDOC Office of
Legal Affairs for service of process on Defendants Manguso, Laurence, Kudlauskas,
Wolff, Zade, Englebert, and Rand. 	[Doc. 19]. 	Defendants Kudlauskas, Laurence,
Manguso, Rand, and Zade then waived service6 on October 7, 2020.7 [Doc. 20].
On January 5, 2021, Mr. Jones filed for “Leave to File a Supplemental Complaint.”
[Doc. 31]. 	In that motion, he sought leave to supplement his First Amended Complaint
with allegations concerning subsequent events. 	[Id. at 1]. 	He also filed a proposed
Supplemental Complaint that named additional defendants, including Defendants Drake,
Rogers, Armenta, Turner, Creany, Alvarado, Salazar, Roark, Britton, Lewis, and Wollart,
and articulated claims against them. See [Doc. 31-1 at 1, 7–11]. Three days later, Judge
Crews granted Mr. Jones leave to amend and directed the Clerk of Court to docket the
“Primary Complaint” (referring to what this Court has called the First Amended Complaint,
[Doc. 11]) and the proposed Supplemental Complaint, [Doc. 31-1], together. 	[Doc. 32].
5 Judge Crews has since been appointed a district judge for the United States District
Court for the District of Colorado.
6 The CDOC also waived service on behalf of Jason Lengerich (“Mr. Lengerich”), see
[Doc. 20], but Judge Babcock had dismissed all claims against Mr. Lengerich on October
6, 2020, [Doc. 18].
7 The CDOC notified the Court that Defendant Englebert was not an employee of the
CDOC but provided only “contractual clinical services.” 	[Doc. 20]. 	The Clerk of Court
then attempted to send Dr. Englebert the First Amended Complaint and associated
documents via certified mail, but the envelope was returned as undeliverable. [Doc. 29;
Doc. 30]. 	It does not appear that Defendant Englebert has been served. 	Accordingly,
and no later than April 30, 2024, the Court ORDERS the CDOC to FILE either the last
known address for Defendant Englebert under restriction, or a Notice that it has no last
known address for Defendant Englebert.
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The 	operative 	pleading 	in 	this 	action 	(the 	“Second Amended 	Complaint”) 	is 	the
combination of those two documents. See [Doc. 33]. On January 13, 2021, the CDOC
waived service on behalf of Defendants Drake, Rogers, Armenta, and Creany. [Doc. 35].
On January 25, 2021, Defendants Turner, Alvarado, Salazar, Roark, Britton, Lewis, and
Wollart waived service through counsel. [Doc. 42].
In the Second Amended Complaint, Mr. Jones asserts the following causes of
action pursuant to 42 U.S.C. § 1983, all for violations of the Eighth and Fourteenth
Amendments based on deliberate indifference to serious medical needs, and all brought
against the CDOC and BCCF Defendants in their individual capacities8:
(1) 	a claim against Defendants Manguso and Laurence for denying or delaying
access to care for Mr. Jones’s diabetic foot ulcer at AVCF (“Count I”), [Doc.
33 at 10–13];
(2) 	a claim against Defendant Kudlauskas for denying or delaying access to a
medical boot, glucometer, and other diabetic treatment for Mr. Jones at
BVCF (“Count II”), [id. at 13–15];
(3) 	a claim against Defendants Zade, Rand, Wolff, and Englebert for failing to
appropriately address Mr. Jones’s diabetic foot ulcer and the associated
pain at FCF (“Count III”), [id. at 15–18];
8 This Court does not construe Judge Crews’s ruling as permitting Plaintiff to resurrect the
claims and defendants dismissed by Judge Babcock. 	See [Doc. 32]. 	Rather, the
operative Second Amended Complaint is limited by Judge Babcock’s ruling, [Doc. 18],
which left only Plaintiff’s claim for deliberate indifference, arising from the alleged denial
of 	access 	to 	adequate 	medical 	care 	for 	diabetes, 	against 	Defendants 	Manguso,
Laurence, Kudlauskas, Wolff, Zade, Englebert, and Rand. 	The Court views those
allegations as arising under the Eighth and Fourteenth Amendments. See supra, n.4.
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(4) 	a claim against Defendants Rogers, Armenta, and Drake for failing to take
Mr. Jones to the medical department for daily wound care and failing to feed
him within 30 minutes after he was provided insulin (“Count IV”), [id. at 31];
(5) 	a claim against a “person . . . to be named at a later date” for transferring
Mr. Jones to the Bent County Correctional Facility (“BCCF”) in September
2020 (“Count V”), [id. at 32];
(6) 	a claim against Defendant Turner for stopping Mr. Jones’s “treatment Plan”
at BCCF (“Count VI”), [id.];
(7) 	a claim against Defendant Creany for decreasing Mr. Jones’s dosage of
insulin, and against Defendant Turner for failing to provide Mr. Jones with
custom shoes at BCCF (“Count VII”), [id. at 32–33];
(8) 	a claim against Defendants Alvarado and Salazar for failing to obtain care
for Mr. Jones when his blood sugar was low (“Count VIII”), [id. at 33–34];
(9) 	a claim against Defendants Roark and Britton for allowing others at BCCF
to fail to provide medical care and then not reporting their conduct to law
enforcement (“Count IX”), [id. at 34]; and
(10) 	a claim against Defendants Lewis and Wollart for stopping Mr. Jones’s
wound care and failing to provide food following insulin due to a COVID-19
lockdown at BCCF (“Count X”), [id. at 35].
The Second Amended Complaint seeks various forms of damages and injunctive
relief, including that Defendants Drake, Rogers, Armenta, Alvarado, Salazar, Roark, and
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Britton “be sent to local authorities and the attorney generals officer for prosecution.”9 [Id.
at 21, 36]. 	On March 12, 2021, the BCCF Defendants filed an Answer to the Second
Amended Complaint. 	[Doc. 45]. 	On March 15, 2021, the CDOC Defendants filed a
Motion to Dismiss, [Doc. 46], to which Mr. Jones responded,10 [Doc. 55], and the CDOC
Defendants replied, [Doc. 59].
On January 27, 2022, Plaintiff filed a “Change of Address and an Emergency
Injunctive and Declaratory Relief Order,” [Doc. 61], through which he sought to assert
claims for additional relief. 	On February 17, 2022, both the BCCF Defendants and the
CDOC Defendants responded to Plaintiff’s filing. [Doc. 62; Doc. 63]. On March 9, 2022,
Judge Crews construed the filing as a motion to amend the operative pleading and
advised Mr. Jones that he could not amend the Second Amended Complaint in that
manner. 	[Doc. 64]. 	Judge Crews set a deadline of April 8, 2022, for Mr. Jones to seek
leave to amend and provide a copy of his proposed pleading, and he denied the CDOC
Defendants’ motion to dismiss without prejudice, pending Plaintiff’s determination as to
whether to seek amendment. [Id.].
After receiving an extension of time, Mr. Jones filed a motion to amend on May 9,
2022, [Doc. 68], attaching a proposed Third Amended Complaint, [Doc. 68-1]. The BCCF
Defendants did not oppose the amendment, [Doc. 69], but the CDOC Defendants did,
9 When this Court quotes from Plaintiff’s filings, it does so without the use of [sic] or the
correction of spelling or syntax.
10 Mr. Jones’s response brief was incorrectly docketed as a Response to the Motion for
Extension of Time. 	[Doc. 55]. 	The Court DIRECTS the Clerk of Court to correct the
docket entry associated with [Doc. 55] to reflect that it is Plaintiff’s Response to the Motion
to Dismiss [Doc. 46].
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[Doc. 70]. On September 19, 2022, Judge Crews had this case drawn to a district judge,
and this action was reassigned to the undersigned. [Doc. 77; Doc. 78].
On October 17, 2022, Mr. Jones filed a Supplemental Complaint, which the BCCF
Defendants answered, [Doc. 82], and the CDOC Defendants moved to strike, [Doc. 83].
On March 7, 2023, Judge Crews granted the CDOC Defendants’ request that the
Supplemental Complaint be stricken and denied Mr. Jones’s May 2022 motion to amend
without prejudice. 	[Doc. 96]. 	He also set a Telephonic Status Conference for April 28,
2023, to discuss, among other matters, “one final deadline for Plaintiff to move for
amendment as well as deadlines for Defendants to file any answers or other responsive
pleadings.” [Id.]. At the Telephonic Status Conference, Judge Crews set a May 19, 2023,
deadline for a motion for leave to file an amended complaint and proposed amended
complaint. [Doc. 97]. Mr. Jones did not file any documents by the deadline. See [Doc.
103]. 	Thus, Judge Crews deemed the Second Amended Complaint the operative
pleading in this matter, and he granted the CDOC Defendants leave either to refile their
prior motion to dismiss or to answer the Second Amended Complaint. [Id.].
On October 23, 2023, Plaintiff filed the instant Motion for Summary Judgment.
[Doc. 104]. 	On November 1, 2023, the BCCF Defendants answered the Second
Amended Complaint. 	Compare [Doc. 107], with [Doc. 45]. 	That same day, the CDOC
Defendants refiled the instant Motion for Partial Dismissal. 	[Doc. 108]. 	While both the
Motion for Summary Judgment and the CDOC Defendants’ Motion for Partial Dismissal
were originally referred to Judge Crews for recommendation, [Doc. 105; Doc. 109], this
Court now adjudicates those motions upon the reassignment of this action to the
Honorable James P. O’Hara, a visiting judge, [Doc. 121].
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LEGAL STANDARDS
I. 	Pro Se Litigants
Mr. Jones proceeds pro se in this action.11 Accordingly, the Court affords his filings
a liberal construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But
the Court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991), and applies the same procedural rules and substantive law to Plaintiff as
to represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th
Cir. 2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
II. 	Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational
trier of fact could resolve the issue either way. A fact is material if under the substantive
law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc.,
649 F.3d 1189, 1194 (10th Cir. 2011) (cleaned up). 	In resolving a motion for summary
judgment, the Court reviews the evidence in the light most favorable to the nonmoving
11 On March 22, 2021, Plaintiff filed a Motion for Appointment of Counsel, which Judge
Crews granted on May 26, 2021. 	[Doc. 47; Doc. 54]. 	As part of his Order granting
appointment of counsel, Judge Crews advised Mr. Jones: 	“there is no guarantee that
Panel members will undertake representation in every case selected as part of the Pilot
Program. The Court cautions that unless and until Counsel enters an appearance on his
behalf, Plaintiff is responsible for all scheduled matters, including hearings, depositions,
motions and trial.” [Doc. 54 (emphasis in original)]. As of the date of this Memorandum
Opinion and Order, the undersigned is advised by this District’s Civil Pro Bono Panel that
after four attempts to secure counsel for Mr. Jones, pro bono representation could not be
obtained. There is no constitutional right to counsel in civil cases. See Turner v. Rogers,
564 U.S. 431, 441 (2011); MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988).
Based on its review of Mr. Jones’s filings to date, this Court is satisfied that Mr. Jones can
adequately represent himself at this juncture.
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party, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998), and must refrain
from weighing evidence or making credibility determinations, see Fogarty v. Gallegos,
523 F.3d 1147, 1165 (10th Cir. 2008).
The movant’s burden on summary judgment depends on who bears the ultimate
burden at trial. 	A movant who will not bear the burden of persuasion at trial need not
disprove the other party’s claim; rather, the moving party must only point the Court to a
lack of evidence for the other party on an essential element of that party’s claim. Adler,
144 F.3d at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If, however,
the movant has the burden of proof at trial, “a more stringent summary judgment standard
applies.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In such a case, the movant
“must establish, as a matter of law, all essential elements of the issue before the
nonmoving party can be obligated to bring forward any specific facts alleged to rebut the
movant’s case.” Id.
Once the movant has met its initial burden, the burden then shifts to the nonmoving
party to set forth specific facts, supported by admissible evidence, showing that there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To
defeat summary judgment, the nonmovant cannot rely on arguments of counsel or
conclusory statements based on speculation, conjecture, or subjective belief. See Bones
v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see also 10B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (Apr. 2023 update)
(explaining that the nonmovant cannot rely on “mere reargument of [his] case or the denial
of an opponent’s allegation” to defeat summary judgment). Instead, the nonmovant has
a responsibility to “go beyond the pleadings and designate specific facts so as to make a
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showing sufficient to establish the existence of an element essential to his case in order
to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005)
(cleaned up).
III. 	Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6)
motion, the Court must “accept as true all well-pleaded factual allegations . . . and view
these allegations in the light most favorable to the plaintiff.” 	Casanova v. Ulibarri, 595
F.3d 1120, 1124 (10th Cir. 2010) (quotation omitted). 	A plaintiff may not rely on mere
labels or conclusions, “and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted); see also
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility
refers “to the scope of the allegations in a complaint,” and that the allegations must be
sufficient to nudge a plaintiff’s claim(s) “across the line from conceivable to plausible”
(quotation omitted)). The ultimate duty of the Court is to “determine whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement
to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149,
1160 (10th Cir. 2007).
With these standards in mind, this Court considers Plaintiff’s Motion for Summary
Judgment and the CDOC Defendants’ Motion for Partial Dismissal.
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ANALYSIS
I. 	Plaintiff’s Motion for Summary Judgment
Mr. Jones filed for summary judgment in his favor on October 23, 2023. [Doc. 104].
Both the BCCF Defendants and the CDOC Defendants oppose. 	[Doc. 111; Doc. 112].
Even reviewing Mr. Jones’s filing liberally, this Court concludes that Mr. Jones has not
met his burden. 	Mr. Jones does not discuss the legal standard for summary judgment
generally, his various claims specifically, or offer any undisputed facts or argument to
support judgment in his favor for any particular claim. See Fed. R. Civ. P. 56 (requiring a
party moving for summary judgment to, among other things: 	(1) identify each claim or
defense on which summary judgment is sought; (2) show that there is no genuine dispute
of material fact; and (3) support his assertion by citing to specific material in the record);
see also NYW Civ. Practice Standard 7.1D. While Mr. Jones proceeds pro se, the Court
may not act as his advocate by constructing legal theories or locating factual support for
his claims. See Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citing
Hall, 935 F.2d at 1110). This Court respectfully concludes that summary judgment must
be denied because Mr. Jones has failed to satisfy his burden under Rule 56.
To the extent that Mr. Jones requests that this action proceed to the discovery
phase, however, see [Doc. 104], this Court respectfully agrees that discovery should
proceed expeditiously following the entry of this Memorandum Opinion and Order. Thus,
in conjunction with the resolution of these instant Motions, this Court respectfully REFERS
this case to Judge O’Hara to set a conference as he deems appropriate to set a pretrial
schedule and discovery limitations.
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II. 	The CDOC Defendants’ Motion for Partial Dismissal
The CDOC Defendants move for dismissal of the Second Amended Complaint on
several grounds. First, they argue that Mr. Jones cannot bring any claim for relief under
the Fourteenth Amendment because the Eighth Amendment covers his claims. [Doc. 108
at 4–5]. Second, Defendants Kudlauskas, Laurence, Manguso, Rand, Zade, and Creany
argue that Mr. Jones has failed to allege sufficient facts to support claims against them
for alleged deliberate indifference. 	[Id. at 5–7]. 	Specifically, Defendants Manguso,
Laurence, and Zade move to dismiss any claims against them because, they contend,
the Second Amended Complaint alleges merely a disagreement over treatment, which is
not a cognizable act of deliberate indifference. 	[Id. at 7–10]. 	Meanwhile, Defendants
Kudlauskas, Rand, and Creany argue that the Second Amended Complaint does not
allege that they personally participated in any violation of Mr. Jones’s constitutional rights,
and Dr. Creany further argues that, at most, the Second Amended Complaint describes
“a disagreement over medical treatment and relies on conclusory speculation.” 	[Id. at
10–12]. Next, Defendants Armenta, Drake, and Rogers move to dismiss any request for
injunctive relief that Mr. Jones seeks against them. 	[Id. at 12–13]. 	Finally, Defendants
Manguso, Laurence, Zade, Kudlauskas, Rand, and Creany argue that they are entitled to
qualified immunity because Plaintiff has failed to allege facts establishing a violation of
clearly established law. [Id. at 13–14].
For his part, Mr. Jones urges the Court to allow him to go forward on his claims
pursuant to the Fourteenth Amendment. [Doc. 115 at 2]. He further argues that he has
alleged sufficient facts to support his Eighth Amendment claims and that the claims do
not amount simply to a disagreement as to his care. 	[Id.]. 	Specifically, Mr. Jones
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contends that Defendant Laurence used a pumice bar on his foot ulcer that allowed the
pumice to get into the wound, when the package indicated that the bar was not to be used
on diabetics. 	[Id.]. 	In addition, Mr. Jones argues that Defendant Manguso’s refusal to
treat him until he purchased Absorbase cream violated the Constitution, and that the
Constitution “does not allow general practitioners to handle matters that require the
attention of a specialist.” [Id. at 3]. Mr. Jones also argues that his claims with respect to
Ms. Zade are also not simply a disagreement over treatment because she “overruled a
specialist that her facility sent [him] to and a provider in the facility.” 	[Id.]. 	Plaintiff
responds to the CDOC Defendants’ personal-participation arguments by contending that
(1) Defendant Kudlauskas tried to debride Mr. Jones’s foot with an instrument that he did
not know how to use; (2) Defendant Rand refused to send Mr. Jones to see a foot
specialist even though his bone and tendon were visible as a “stage 3 presure ulcer”; and
(3) Defendant Creany knew that because of COVID-19 protocols, there was no wound
care available to Mr. Jones. 	[Id. at 3–4]. 	With respect to prospective injunctive relief
against Defendants Armenta, Rogers, and Drake, Mr. Jones appears to argue that Brown
v. Plata permits this Court to order the requested injunctive relief. 	[Id. at 4]. 	Mr. Jones
further argues that Defendants Manguso, Laurence, Zade, Kudlauskas, Rand, and
Creany are not entitled to qualified immunity because they violated his constitutional and
statutory rights that were clearly established at the time. [Id.]. Finally, Plaintiff argues that
he is entitled to discovery to prove his claims. [Id. at 4–5].
In their reply brief, the CDOC Defendants argue that the Eighth Amendment is the
proper constitutional amendment here and that, regardless, it shares the same legal
standard as the Fourteenth Amendment for purposes of this case. 	[Doc. 120 at 2–3].
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With respect to Plaintiff’s assertion of additional facts, the CDOC Defendants urge this
Court to limit its review to the facts alleged in the Second Amended Complaint, but
contend that the analysis would not change even if the Court considered these new
factual allegations. [Id. at 4–6]. The CDOC Defendants further argue that Brown v. Plata
does 	not 	stand 	for 	the 	proposition 	that 	injunctive 	relief 	can 	be 	obtained 	against
government officials named solely in their individual capacities. 	[Id. at 6]. 	Finally, the
CDOC contends that Mr. Jones has not adequately addressed their invocation of qualified
immunity on behalf of Defendants Manguso, Laurence, Zade, Kudlauskas, Rand, and
Creany. [Id. at 7].
A. 	Fourteenth Amendment Claims
The Fourteenth Amendment’s Due Process Clause has a substantive component
which “forbids the government to infringe certain ‘fundamental’ liberty interests.” 	See
Reno v. Flores, 507 U.S. 292, 301–02 (1993). 	But “[w]here a particular Amendment
provides an explicit textual source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims.” Cnty. of Sacramento v. Lewis,
523 U.S. 833, 842 (1998) (quotation omitted). 	The Eighth Amendment is generally
understood to protect the rights of convicted prisoners. Strain v. Regalado, 977 F.3d 984,
989 (10th Cir. 2020). 	Specifically, the Eighth Amendment’s proscription on cruel and
unusual punishment extends to the conditions under which an inmate is confined. 	See
Contreras ex rel. A.L. v. Dona Ana Cnty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1116 (10th
Cir. 2020) (Tymkovich, J., concurring). And the Eighth Amendment is made applicable to
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the states through the Fourteenth Amendment. See Riddle v. Mondragon, 83 F.3d 1197,
1202 (10th Cir. 1996).
A review of the Second Amended Complaint reveals that Mr. Jones makes no
distinction between the Eighth and Fourteenth Amendments. 	See generally [Doc. 33].
Accordingly, any Fourteenth Amendment claim would be duplicative of Plaintiff’s Eighth
Amendment claims. See Brooks v. Colo. Dep’t of Corr., No. 18-cv-02578-PAB-SKC, 2019
WL 4120753, at *6 (D. Colo. Aug. 6, 2019) (“Here, there are no differentiating facts
between Brooks’ Eighth Amendment claim and his Fourteenth Amendment claim. 	. . .
Thus, the Fourteenth Amendment claim is duplicative of the Eighth Amendment claim and
should be dismissed on that ground.”), report and recommendation adopted, 2019 WL
4085371 (D. Colo. Aug. 29, 2019). To the extent the causes of action against the CDOC
Defendants arise under the Fourteenth Amendment, they are DISMISSED as duplicative,
and this Court proceeds to review Mr. Jones’s claims solely under the Eighth Amendment.
See Riddle, 83 F.3d at 1202; Cnty. of Sacramento, 523 U.S. at 842.
B. 	Injunctive Relief against Defendants Armenta, Rogers, and Drake
The CDOC Defendants next argue that Mr. Jones’s request for injunctive relief
against Defendants Armenta, Rogers, and Drake is improper because they are sued only
in their individual capacities. See [Doc. 108 at 12–13]. Mr. Jones does not dispute that
he has brought his claims against these Defendants in their individual, rather than official,
capacities. 	See [Doc. 115 at 4]; see also [Doc. 33 at 27]. 	Rather, he emphasizes that
Defendants Armenta, 	Rogers, 	and 	Drake 	have 	not 	moved 	to 	dismiss 	the 	Eighth
Amendment claim against them. See [Doc. 115 at 4].
Mr. Jones is correct that Defendants Armenta, Rogers, and Drake have not moved
to dismiss Count IV insofar as it seeks money damages for violation of the Eighth
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Amendment. 	See [Doc. 108 at 7 n.2]. 	Instead, they focus on the request for injunctive
relief Plaintiff makes against them, and several of the BCCF Defendants, in their individual
capacities. 	See [Doc. 33 at 36]. A request for injunctive relief is not a distinct cause of
action. See Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F. Supp. 3d 1127, 1141 (D. Colo.
2019). 	But it is well-settled that “[s]ection 1983 plaintiffs may sue individual-capacity
defendants only for money damages and official-capacity defendants only for injunctive
relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (citing Hafer v. Melo,
502 U.S. 21, 27, 30 (1991)). And it is undisputed that Plaintiff does not bring any claims
against Defendants Armenta, Rogers, or Drake in their official capacities. 	See [Doc. 33
at 27; Doc. 115 at 4]. Finally, to the extent Plaintiff relies on the Supreme Court’s decision
in Brown v. Plata, [Doc. 115 at 4], the Court agrees with Defendants that this case is
inapposite because it does not concern “whether a plaintiff can seek injunctive relief from
a government official named solely in his or her individual capacity,” [Doc. 120 at 6]; see
also Brown v. Plata, 563 U.S. 493 (2011). The Court respectfully concludes that dismissal
of Plaintiff’s request for injunctive relief as to Defendants Armenta, Rogers, and Drake,
named in their individual capacities, is appropriate. Count IV remains only to the extent
it seeks money damages.12
C. 	Qualified Immunity
Assuming without deciding that Plaintiff states Eighth Amendment claims against
Defendants Manguso, Laurence, Zade, Kudlauskas, Rand, and Creany, the Court
respectfully concludes that these Defendants are entitled to qualified immunity because
12 Insofar as Mr. Jones continues to seek a pardon as a form of injunctive relief, Judge
Gallagher has explained that such a request is not appropriate in this civil rights action.
See [Doc. 17 at 5].
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Plaintiff has failed to carry his burden to show that they violated clearly established law.
The doctrine of qualified immunity protects government officials from individual liability for
actions carried out while performing their official duties so long as their conduct does not
violate clearly established constitutional or statutory rights. 	See Washington v. Unified
Gov’t of Wyandotte Cnty., 847 F.3d 1192, 1197 (10th Cir. 2017). Once a defendant has
asserted qualified immunity as a defense, the plaintiff bears the burden to establish that
(1) the defendant violated a constitutional or statutory right, and (2) the right was clearly
established at the time of the defendant’s action. See Puller v. Baca, 781 F.3d 1190, 1196
(10th Cir. 2015). The Court may address these two prongs in either order. See Pearson
v. Callahan, 555 U.S. 223, 243 (2009).
The CDOC Defendants primarily argue that qualified immunity shields Defendants
Manguso, Laurence, Zade, Kudlauskas, Rand, and Creany from suit because Mr. Jones
has failed to show that they violated a federal constitutional or statutory right, which
means “he necessarily has failed to allege facts establishing the violation of a clearly
established one.” 	[Doc. 108 at 13–14]. 	Although the CDOC Defendants’ argument
focuses on the first prong of qualified immunity, it remains Mr. Jones’s burden to establish
both prongs. See Hunt v. Montano, 39 F.4th 1270, 1284–85 (10th Cir. 2022) (holding that
“[e]ven if the [defendants] failed to argue the clearly established prong in detail, as here,
[plaintiffs] still bore the burden to demonstrate that it was met”). 	All Mr. Jones says in
response to the CDOC Defendants’ qualified immunity argument is: 	“In my complaint I
have showen defendants have violated the federal constitution and statutory rights and I
clearly established my rights at the time.” [Doc. 115 at 4].
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The second prong of the qualified immunity test presents a legal, rather than
factual, 	inquiry. 	And 	“generalized 	propositions 	of 	law 	are 	insufficient 	for 	clearly
established law purposes.” Doe v. Woodard, 912 F.3d 1278, 1298 n.23 (10th Cir. 2019).
Instead, a right is “clearly established” if there is a Supreme Court or Tenth Circuit decision
on point or if the weight of authority in other courts provides that the right is clearly
established. 	See Washington, 847 F.3d at 1197; DeSpain v. Uphoff, 264 F.3d 965, 979
(10th Cir. 2001). A case is considered “on point” if it involves materially similar conduct
to the case at hand or applies “with obvious clarity” to the conduct at issue. 	Lowe v.
Raemisch, 864 F.3d 1205, 1208 (10th Cir. 2017) (quotation and emphasis omitted).
Although a case directly on point is not required, “existing precedent must have placed
the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011).
As a pro se litigant, Mr. Jones is still bound by the same substantive and procedural
law as a represented party, and this Court cannot act as his advocate. Murray, 312 F.3d
at 1199 n.3; Hall, 935 F.2d at 1110. Mr. Jones identifies no Supreme Court or Tenth Circuit
cases in his opposition to the CDOC Defendants’ Motion for Partial Dismissal, let alone
cases that demonstrate that any violations alleged here were clearly established. 	See
[Doc. 115 at 4]. Nor does Mr. Jones cite cases elsewhere in his filing that could suggest
to the Court the law is clearly established. See [id.]. Accordingly, Plaintiff has not met his
burden to show that Defendants violated clearly established law. 	See Cappelli v.
Hickenlooper, No. 17-cv-01439-PAB-NRN, 2018 WL 11546717, at *12 (D. Colo. Sept. 30,
2018) (granting qualified immunity where “plaintiffs [did] not cite any authority that clearly
establishe[d]” a constitutional violation); Brick v. Estancia Mun. Sch. Dist., No. 1:18-cv-
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01143-JCH-JHR, 2020 WL 6144706, at *5 (D.N.M. Oct. 20, 2020) (granting qualified
immunity where litigant “[did] not identify or cite any authority to support the alleged
violation 	of 	a 	clearly 	established 	right”). 	Defendants 	Manguso, 	Laurence, 	Zade,
Kudlauskas, Rand, and Creany are entitled to qualified immunity. Accordingly, the Court
respectfully DISMISSES without prejudice Count I against Defendants Manguso and
Laurence, Count II against Defendant Kudlauskas, Count III against Defendants Zade
and Rand, and Count VII as against Defendant Creany, based on qualified immunity.13
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1) 	Plaintiff Chad O’Neal Jones’s Motion for Summary Judgment [Doc. 104] is
DENIED;
(2) 	The CDOC Defendants’ Refiled Partial Motion to Dismiss Second Amended
Complaint under Fed. R. Civ. P. 12(b)(6) [Doc. 108] is GRANTED;
(3) 	All Fourteenth Amendment claims against the CDOC Defendants in Counts
I, II, III, and VII are DISMISSED as duplicative;
(4) 	Counts I, II, III are DISMISSED without prejudice;
(5) 	Count VII as to Defendant Creany is DISMISSED without prejudice;
(6) 	Plaintiff’s request for injunctive relief against Defendants Armenta, Rogers,
and Drake in their individual capacities is DISMISSED with prejudice, but
Count IV REMAINS insofar as it seeks money damages;
13 Count VII remains to the extent it seeks relief against Defendant Turner.
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(7) 	On or before April 30, 2024, the CDOC SHALL FILE either the last known
address for Defendant Englebert under restriction, or a Notice that it has no
last known address for Defendant Englebert;
(8) 	This matter is REFERRED to the Honorable James P. O’Hara to conduct a
Status and/or Scheduling Conference; and
(9) 	A copy of this Order shall be sent to:
Chad O’Neal Jones, #160427
Colorado Territorial Correctional Facility
P.O. Box 1010
Cañon City, CO 81215-1010
DATED: April 16, 2024 	BY THE COURT:
Nina Y. Wang
United States District Judge
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