Donald v. Pearson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-01312-RM-NRN
LARON ANTONIO DONALD,
Plaintiff,
v.
DR. DOUGLAS L. PEARSON, Dentist,
Warden MARK FAIBAIRN,
LINDSAY GOUTY, H.S.A.,
DR. MICHAEL HALE, Chief of Dentistry,
MICHELLE BRODEUR, Director of Clinical and Correctional Services, and
CHRISTOPHER MAUL, Chief Medical Officer,
Defendants.
REPORT AND RECOMMENDATION ON
THE CDOC DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS (DKT. #32)
AND
DEFENDANT DOUGLAS PEARSON’S MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) (DKT. #34)
N. Reid Neureiter
United States Magistrate Judge
This matter is before the Court on Orders (Dkt. ##33, 35) entered by Judge
Raymond P. Moore referring Defendants Fairbairn, Gouty, Hale, Brodeur, and Maul’s
(the “CDOC Defendants”) Rule 12(b)(6) Motion to Dismiss (Dkt. #34), and Defendant
Douglas Pearson’s Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed.
R. Civ. P. 12(b)(6). (Dkt. #34.) Plaintiff LaRon Donald (“Plaintiff” or “Mr. Donald”) filed
responses to the motions to dismiss (Dkt. ##45, 46) and the respective Defendants filed
replies. (Dkt. ##53, 54.) The Court heard argument from the parties on January 4, 2023.
(See Dkt. #55.)
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The Court has taken judicial notice of the Court’s file and considered the
applicable Federal Rules of Civil Procedure and case law. Now being fully informed and
for the reasons discussed below, the Court makes the following recommendation.
BACKGROUND 1
Mr. Donald is an inmate currently incarcerated at the Arkansas Valley
Correctional Facility (“AVCF”). (Dkt. #9 at 6.) In April 2021, he began to experience
“sensitivity and discomfort in his teeth.” (Id.) After submitting a “Request for Sick Call”
on April 17, 2021, Mr. Donald saw Defendant Pearson, a dentist, and described the
issues he was experiencing. (Id.) Defendant Pearson diagnosed Mr. Donald with
several dental needs, including a few teeth with early routine decay that would require
fillings, and three partially erupted molars. (Id.) Defendant Pearson informed Mr. Donald
that he would provide treatment at a later date. (Id.)
Fourteen weeks later, in August 2021, Mr. Donald saw Defendant Pearson for
treatment and informed him that his discomfort and sensitivity had transformed into
severe pain whenever eating or drinking. Id. Mr. Donald complained that a 17-year-old
filling on his front tooth was worn down and loose and asked for it to be refilled. (Id.)
Defendant Pearson denied this request, instead offering to file down Mr. Donald’s other
tooth to match the worn state of the existing filing. (Id.) Defendant Pearson informed Mr.
Donald that the cavities could “go longer” before treatment was required. (Id.) In
addition to refusing to fill the cavities, Mr. Donald claims that Defendant Pearson
1 The following allegations are taken from Plaintiff’s Amended Prisoner Complaint
(Dkt. #9) and all nonconclusory allegations are presumed true for the purposes of
deciding the motions to dismiss. All citations to docketed materials are to the page
number in the CM/ECF header, which sometimes differs from a document’s internal
pagination.
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refused to provide Mr. Donald with a night guard to help prevent teeth grinding. (Id. at
7.) Mr. Donald claims that he begged Defendant Pearson for some treatment during the
August 2021 visit, but Defendant Pearson refused to provide any. (Id.)
On or about October 12, 2021, Mr. Donald submitted another Request for Sick
Call explaining the severe pain he was in due to the cavities. He also requested a
mouth guard to prevent jaw pain and teeth grinding. (Id.)
On or about October 18, 2021, Mr. Donald filed a Step 1 grievance requesting
that Defendant Pearson be required to fill the cavities, which he alleges were causing
him “sever[e] and debilitating pain and suffering.” (Id.) Defendant Pearson denied this
grievance.
Sometime thereafter,2 Mr. Donald attempted to file a Step 2 grievance, but was
informed that his Step 1 grievance had disappeared. As a result, his case manager was
required to transform his Step 2 grievance into a Step 1 grievance and restart the
process. (Id. at 8.)
Mr. Donald submitted another Request for Sick Call on October 22, 2021 and
stated that the cavities hurt so badly he felt like it was “killing” him. (Id.) Defendant
Pearson did not respond or provide treatment.
On October 28, 2021, Mr. Donald submitted another Request for Sick Call asking
for treatment and explained, “The pain is so extreme I can’t think.” (Id.) Again,
Defendant Pearson did not respond. Mr. Donald also submitted another Step 1
2 There appears to be some discrepancy in the dates that Mr. Donald provides
regarding his grievances, as he previously alleged that the Step 1 grievance was filed
on October 18, 2021.
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grievance “to address the delay that the destruction of his first grievance had caused as
it would prevent him form [sic] receiving medical treatment for his cavities.” (Id.)
On November 8, 2021, Mr. Donald submitted a Step 2 grievance again
complaining about the lack of treatment. Defendant Michael Hale, another CDOC
dentist, denied the grievance. (Id.)
On November 18, 2021, Mr. Donald felt a sharp pain and crunch while eating,
and spit out a fragment of his tooth. (Id.) He attempted to declare a medical emergency,
but an officer told Mr. Donald that he would not be seen unless he was bleeding or
swelling. (Id.) Mr. Donald then submitted another Request for Sick Call, stating that he
was unable to eat and was losing weight.” (Id.) Again, Defendant Pearson did not
provide treatment.
On December 8, 2021, Mr. Donald filed a Step 3 grievance complaining that
Defendant Pearson still had yet to provide any treatment for the dental cavities. (Id.)
This grievance too, was denied.
On December 17, 2021, Mr. Donald submitted another Request for Sick Call.
This time, he requested a tube of Orajel to at least ease the dental pain he was
experiencing. (Id.) Mr. Donald alleges that Defendant Pearson did not respond.
On December 29, 2021, Mr. Donald had a dental appointment with Defendant
Pearson. Instead of providing treatment, Defendant Pearson reviewed the grievances
Mr. Donald had filed and became very irritated. Defendant Pearson asked Mr. Donald
whether he was the author. (Id.; see also id. at 10.) According to Mr. Donald, Defendant
Pearson shoved the papers into Mr. Donald’s hands and forced Mr. Donald to read the
grievances out loud, and then asked Mr. Donald asked something to the effect of “Do
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you think it was wise to write something like this when I’m the one who is going to
perform a surgical procedure on you?” (Id. at 8, 10.)
Defendant Pearson then asked Mr. Donald why he had not declared an
emergency if he was truly experiencing severe pain, and Mr. Donald explained that he
had been informed he would not be treated if he was not bleeding. (Id. at 11.)
Defendant Pearson continued to berate Mr. Donald, and Mr. Donald attempted to draw
the attention of Defendant Gouty, the Health Services Administrator, but she could not
hear him. Defendant Pearson told Mr. Donald to “shut up.” (Id.)
Mr. Donald inquired whether he would receive any treatment that day, and
Defendant Pearson informed him that he would pull three teeth and fill one. (Id.)
However, Defendant Pearson had not taken any new x-rays or examined Mr. Donald’s
mouth to determine whether extraction was necessary. (Id.) Mr. Donald was concerned
because it was only eight months earlier that Defendant Pearson had said that the
cavities were only in their beginning stages. Mr. Donald told Defendant Pearson that he
did not believe it was necessary to pull three teeth. (Id.)
Mr. Donald alleges that Defendant Pearson then stated, “Oh, you’re gonna tell
me how to do my job, you know everything,” while waving the grievances in Mr.
Donald’s face. (Id.) The apparently tense conversation continued, and eventually Mr.
Donald asked Defendant Pearson to show him which tooth would be filled. Defendant
Pearson pointed to Mr. Donald’s upper right cheek, and Mr. Donald protested that there
was no pain in that area. (Id. at 12)
Mr. Donald then became concerned that Defendant Pearson “was attempting to
pull his good teeth and not fix his cavities with fillings to punish him for filing
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grievances.” (Id.) Mr. Donald requested a mirror so that he could use it to see which
tooth Defendant Pearson was referring to and alleges that Defendant Pearson shoved a
handheld mirror into his hand so forcefully that it caused pain. (Id.)
At this time, Mr. Donald attempted to leave and Defendant Pearson tried to block
the path to the doorway. Mr. Donald claims that Dr. Pearson knew that if Mr. Donald
touched him in any way while he was attempting to leave, Defendant Pearson could
subject Mr. Donald to disciplinary proceedings by claiming Mr. Donald had assaulted
him. (Id.)
Mr. Donald was able to leave the room and a staff member found him. Mr.
Donald requested to speak with Defendant Gouty but was informed he would need to
file a grievance. (Id.) Mr. Donald made several other attempts to report Defendant
Pearson, even explaining that he wanted to press criminal charges for assault and
battery, but was repeatedly told to file a grievance. (Id. at 13.)
Mr. Donald filed a grievance for retaliation on December 30, 2021. He alleges
that Defendant Pearson responded to the grievance by claiming that Mr. Donald was
the aggressive one during the visit. Mr. Donald also alleges that Defendant Gouty
performed an investigation of the incident and found that Defendant’s Pearson’s claims
lacked merit. (Id.)
As of filing his complaint on May 26, 2022, Plaintiff had still not received dental
treatment.3
3 Though not germane to the pending motions, the Court notes that Mr. Donald
did receive dental treatment from a provider other than Dr. Pearson on February 23,
2023. Mr. Donald explained that Dr. Hale extracted two teeth, but determined that no
fillings were required. (See Dkt. #63.)
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Based on these allegations, Mr. Donald asserts claims for deliberate indifference
in violation of the Eighth Amendment and for retaliation under the First and Fourteenth
Amendments against Defendant Pearson. Mr. Donald’s third claim asserts that
Defendants Fairburn, Gouty, and Hale were also deliberately indifferent to his serious
dental needs by failing to provide him with dental care. Mr. Donald’s fourth claim for
relief alleges that Defendants Brodeur, Maul, Hale, and Fairbairn have an
unconstitutional policy or custom with respect to responding to grievances and failing to
supervise their subordinates. Finally, Mr. Donald asserts a claim for supervisory liability
against Brodeur, Maul, Hale, and Fairbairn, alleging that their failure to train or
supervise caused the Eighth and First Amendment violations.
The CDOC Defendants move for dismissal of Mr. Donald’s claims, arguing that
he has failed to state a claim and that his own allegations are belied by the exhibits he
attaches to the Amended Complaint. They also argue that the CDOC Defendants are
entitled to qualified immunity.
Defendant Pearson similarly moves for dismissal of Plaintiff’s Amended
Complaint, arguing that Mr. Donald had failed to state a claim and that Defendant
Pearson is protected by qualified immunity.
LEGAL STANDARDS
I. 	Pro Se Plaintiff
Mr. Donald proceeds 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). However, a pro se litigant’s “conclusory allegations without supporting factual
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averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
II. 	Failure to State a Claim Upon Which Relief Can be Granted
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled
allegations as true, purely conclusory statements are not entitled to this presumption. Id.
at 678, 681. Therefore, so long as the plaintiff pleads sufficient factual allegations such
that the right to relief crosses “the line from conceivable to plausible,” he has met the
threshold pleading standard. Twombly, 550 U.S. at 556, 570.
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III. Qualified Immunity
“Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When a defendant asserts
the defense of qualified immunity, the burden shifts to the plaintiff to overcome the
asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). To
determine resolve a government official’s qualified immunity claims, a court must “The
plaintiff must “decide whether the facts that a plaintiff has alleged . . . make out a
violation of a constitutional right” and “whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232. A
reviewing court has discretion to address either prong first. Id. at 236.
Raising a qualified immunity defense in a motion to dismiss “subjects the
defendant to a more challenging standard of review than would apply on summary
judgment.” Sayed v. Virginia, 744 F. App’x 542, 545-46 (10th Cir. 2018) (quoting
Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)). “At the motion to dismiss
stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for
objective legal reasonableness.” Id. at 546 (quoting Thomas v. Kaven, 765 F.3d 1183,
1194 (10th Cir. 2014)). Accordingly, to survive a motion to dismiss, a plaintiff “need ‘only
allege enough factual matter’ to state a claim that is ‘plausible on its face and provide
fair notice to a defendant.’” Id. (quoting Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir.
2013)).
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ANALYSIS
I. Deliberate Indifference
Under the Eighth Amendment, prison officials can be liable for deliberate
indifference to a serious medical need when “intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.” Estelle v.
Gamble, 429 U.S. 97, 104–05 (1976).
The test for liability of prison officials for deliberate indifference to an inmate’s
serious medical needs, in violation of the Eighth Amendment, involves both an objective
and a subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). A
plaintiff must first make non-conclusory allegations that the deprivation at issue was in
fact sufficiently serious. Id. A medical need is “sufficiently serious” if it is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that
“even a layperson would easily recognize the necessity for a doctor’s attention.” Id.
(quoting Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000)).
“Where the necessity for treatment would not be obvious to a lay person, the
medical judgment of the physician, even if grossly negligent, is not subject to second-
guessing in the guise of an Eighth Amendment claim.” Id. (citing Green v. Branson, 108
F.3d 1296, 1303 (10th Cir. 1997)). In addition, a delay in a prisoner’s medical care only
constitutes an Eighth Amendment violation where the plaintiff can show the delay
resulted in substantial harm. Id. The substantial harm requirement for a deliberate
indifference claim may be satisfied by showing “lifelong handicap, permanent loss, or
considerable pain.” Id. (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.
2001)).
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The subjective prong of the test for deliberate indifference to an inmate’s serious
medical needs requires the plaintiff to present evidence (or, at the motion to dismiss
stage, non-conclusory allegations) of the prison official’s culpable state of mind. Id. at
751. The subjective component is satisfied if the accused 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 she must also draw the inference. Id. A prison medical professional who
serves as a “gatekeeper” for other medical personnel capable of treating a condition
may be held liable under the deliberate indifference standard if she delays or refuses to
fulfill that gatekeeper role. Id. at 757.
Deliberate indifference does not require a finding of express intent to harm. Mata,
427 F.3d at 752. Thus, a plaintiff alleging deliberate indifference to serious medical
need not show (or allege) that a prison official acted or failed to act believing that harm
actually would befall the inmate. It is enough that the official acted or failed to act
despite knowledge of a substantial risk of serious harm. Id. This standard is akin to
criminal recklessness, which makes a person liable when she consciously disregards a
substantial risk of serious harm. Id. (citing Farmer v. Brennan, 511 U.S. 825, 836-38
(1994)).
The standard for deliberate indifference to an inmate’s serious medical needs lies
somewhere “between the poles of negligence at one end and purpose or knowledge at
the other.” Id. at 752. The task of deciding on a motion to dismiss whether an alleged
constellation of facts constitutes deliberate indifference is made more difficult because
“contemporary standards and opinions of the medical profession also are highly
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relevant in determining what constitutes deliberate indifference to medical care.” Id. at
757–58 (citing Howell v. Evans, 922 F.2d 712, 719, vacated after settlement by 931
F.2d 711 (11th Cir. 1991)). For example, in Mata, in the context of summary judgment,
the Tenth Circuit relied on expert affidavits and a CDOC health care publication to
conclude that there were issues of fact as to whether a nurse knew that severe chest
pain posed a serious risk of health and the failure to act was reckless under acceptable
medical norms. Id. at 759; see also Kellum, 657 F. App’x at 766 (affirming denial of
prison official’s motion for summary judgment on question of qualified immunity, citing
expert medical evidence that five-hour delay in getting obviously sick inmate to hospital
substantially worsened the inmate’s condition, ultimately requiring heart surgery).
The level of intent required for deliberate indifference to an inmate’s serious
medical needs can be demonstrated through circumstantial evidence. Id. “Whether a
prison official had the requisite knowledge of a substantial risk to the inmate’s health or
safety is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.” Id.
(quoting Farmer, 511 U.S. at 542).
Accordingly, for Mr. Donald to overcome Defendants’ motions, he is required to
set forth non-conclusory allegations demonstrating that his medical need was
objectively sufficiently serious, and that Defendants’ delay in meeting that need caused
him substantial harm. Then, to meet the subjective prong of the deliberate indifference
test, Mr. Donald must provide non-conclusory allegations supporting an inference that
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each Defendant knew about and disregarded a substantial risk of harm to his health and
safety. Id.
A. Objective Component
The CDOC Defendants argue that Mr. Donald has failed to adequately plead the
objective prong. The Court disagrees.
Mr. Donald must plausibly allege facts showing a serious dental need. The Tenth
Circuit has recognized that “considerable pain” may qualify as substantial harm under
the Eighth Amendment. Mata, 427 F.3d at 751. The Tenth Circuit has also
acknowledged that “[a] cognizable claim regarding inadequate dental care, like one
involving medical care, can be based on various factors, such as the pain suffered by
the plaintiff, the deterioration of the teeth due to lack of treatment, or the inability to
engage in normal activities.” Conley v. McKune, 529 F. App’x 914, 919 (10th Cir. 2013)
(quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). In Conley, allegations
of intense and chronic pain caused by overlapped, bucked, crowded, and crooked teeth,
and the inability to chew food or properly close the mouth, were sufficient to allege a
serious dental need. See id. at 920. In Chance, the Second Circuit held that allegations
of extreme pain, tooth deterioration, and failure to eat properly were sufficient to satisfy
the objective prong at the pleading stage. 143 F.3d at 703.
Here, Mr. Donald alleges that the untreated dental issues caused him severe
headaches and that the pain was so extreme he could not think. (Dkt. #9 at 7, 8). He
also alleged that he was unable to eat because the pain was so intense, and that he
was losing weight. (Id. at 8.) In November 2021, Mr. Donald described a sharp pain and
crunch, after which he spit out a fragment of his tooth. (Id.) At some point, he requested
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Orajel to at least alleviate the pain he was experiencing, and hopefully help ease the
headaches. (Id.) Thus, Mr. Donald has sufficiently alleged that he was experiencing
considerable pain.
B. Subjective Prong
The Court next considers whether Mr. Donald has alleged facts supporting an
inference that Defendants knew about and disregarded a substantial risk of harm to Mr.
Donald’s health and safety. Because “§ 1983 imposes liability for a defendant’s own
actions[,] personal participation in the specific constitutional violation complained of is
essential.” Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011); see also Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013).
1. Defendant Pearson
Defendant Pearson argues that Mr. Donald has failed to plausibly allege the
subjective prong of an Eighth Amendment claim, and he is therefore entitled to qualified
immunity. Specifically, Defendant Pearson argues that Mr. Donald’s allegations suggest
only disagreement with a medical professional’s recommended course of treatment, not
deliberate indifference. The Court agrees.
Mr. Donald alleges that he was experiencing pain from cavities and from grinding
his teeth. Mr. Donald’s own allegations and the grievances and responses he attached
to his original Complaint (Dkt. #1-1 at 6–8, 12–14 )4 demonstrate that Mr. Donald saw
4 Courts may consider documents attached to a plaintiff’s complaint without
converting a Rule 12(b)(6) motion into a motion for summary judgment if the documents
are “central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Brokers Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103
(10th Cir. 2017) (internal quotations omitted). The Court notes that Mr. Donald did not
include these documents with his Amended Complaint. Though the Court generally will
not consider documents not contained in or attached to the operative complaint, Mr.
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Defendant Pearson for a dental appointment sometime in the Spring of 2021, at which
time Defendant Pearson performed a dental x-ray and diagnosed Mr. Donald with
several dental needs including early decay that would eventually require fillings, and
three partially erupted molars. In August 2021, Defendant Pearson informed Mr. Donald
that he would not perform any fillings, and instead recommended that Mr. Donald have
his wisdom teeth (the three partially erupted molars) removed. Mr. Donald had a third
appointment with Dr. Pearson in December 2021, where Dr. Pearson again made
treatment recommendations.
Mr. Donald was not denied medical treatment. Indeed, his allegations reflect that
he had at least three appointments with Defendant Pearson. Instead, Mr. Donald
disagreed with this treatment recommendation in August 2021 and during the
December 2021 visit. And, with respect to the mouth guard, Defendant Pearson
explained to Mr. Donald that, based on his education, mouth guards can cause
additional issues with the temporomandibular joint, and Dr. Pearson would therefore not
prescribe one. (Dkt. #1-1 at 6.) In Mr. Donald’s own words, he said that Defendant
Pearson explained that “he feels mouth guards are more destructive than helpful.” (Id.)
An inmate does not state a constitutional claim where he “disagrees with a diagnosis or
a prescribed course of treatment [and, as a result] does not state a constitutional
violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
Donald expressly referenced these documents in his Amended Complaint and referred
to them in his response as well as during oral argument at Court. Accordingly, the Court
finds it appropriate to view them without converting the pending motions to dismiss into
motions for summary judgment. This applies only to the grievances Mr. Donald
submitted with his original complaint (Dkt. #1-1 at 6–8, 12–14.)
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Mr. Donald also complains that Defendant Pearson declined to take further x-
rays at the December 2021 appointment, allegedly recommending treatment in areas
where Mr. Donald was not experiencing pain. Again, even if Defendant Pearson’s
diagnosis and treatment decisions were somehow negligent, or even grossly negligent,
that is still insufficient to state a deliberate indifference claim. See Estelle, 429 U.S. at
107 (“[T]he question whether an x-ray or additional diagnostic techniques or forms of
treatment is indicated is a classic example of a matter for medical judgment. A medical
decision not to order an x-ray, or like measures, does not represent cruel and unusual
punishment.”); Self v. Crum, 439 F.3d 1227, 1234 (10th Cir. 2006) (“a misdiagnosis,
even if rising to the level of medical malpractice,” is insufficient to demonstrate an
Eighth Amendment claim); Mata, 427 F.3d at 751 (“the medical judgment of the
physician, even if grossly negligent, is not subject to second-guessing in the guise of an
Eighth Amendment claim”). On the basis of this authority, the Court finds that Mr.
Donald has not stated a plausible Eighth Amendment claim against Defendant Pearson,
and this claim should be dismissed.
2. CDOC Defendants
Mr. Donald’s amended complaint indicates that he is suing the CDOC
Defendants in their individual and official capacities. Mr. Donald’s third claim for relief
alleges that CDOC Defendants Fairbairn, Gouty, and Hale were aware of Mr. Donald’s
serious dental condition but failed to provide treatment. In his fourth and fifth claims for
relief, Mr. Donald asserts various theories of supervisory liability against Defendants
Brodeur, Fairbairn, Hale, and Maul for violation of the Eighth Amendment. These claims
each fail.
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i. Defendant Gouty
Mr. Donald alleges that Defendant Gouty, the HSA at AVCF, failed to provide
treatment for a serious medical need. He does not allege that she created a policy or
custom, or that she failed to train or supervise.
There are no allegations that Defendant Gouty had the training required to
provide Mr. Donald with treatment herself, or that she otherwise had a role in
determining his course of treatment. Nonetheless, a prison medical professional who
serves solely as a gatekeeper for other medical personnel capable of treating the
inmate may be liable under a deliberate indifference standard if she “delays or refuses
to fulfill that gatekeeper role.” Sealock, 218 F.3d at 1211.
Here, Mr. Donald alleges that he attempted to get Defendant Gouty’s attention
during his contentious appointment with Dr. Pearson, but Defendant Gouty did not hear
his shouts and Defendant Pearson told him to “shut up.” (Dkt. #9.) He later alleges that
he requested to speak with Defendant Gouty after the December 2021 appointment but
was informed by other staff, who are not named Defendants, that he would have to put
in a kite in order to speak with her. (Id.) Finally, he claims that he had an in-person
exchange with Defendant Gouty on January 26, 2022, where she stated that she would
meet with him, but “provided him with no medical treatment.” (Id. at 15; see also id. at
16.)
When he was finally able to meet in person with Defendant Gouty, she
corroborated his story about the contentious dentist appointment and stated that he
would be refunded for the appointment. (Id.) Mr. Donald did receive the refund, but still
was not seen by a different dentist.
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As previously stated, there is no constitutional requirement that Mr. Donald be
allowed to visit another dentist. Thus, Defendant Gouty had no duty to arrange such an
appointment. Nor are there any allegations that she had the authority to arrange for
such an appointment. Thus, Mr. Donald has failed to state an Eighth Amendment claim
against Defendant Gouty. See Sherman v. Klenke, 653 F. App’x 580, 589 (10th Cir.
2016) (upholding grant of summary judgment in favor of HSA where HSA did not have
authority to make treatment decisions or change prescriptions, and was simply
responsible for the administration and operations of medical clinic).
ii. Defendant Fairbairn
The allegations against Defendant Fairbairn similarly fail to state a deliberate
indifference claim. Defendant Fairbairn is the warden at AVCF. Mr. Donald makes only
conclusory allegations against Defendant Fairbairn; there is no indication that this
individual was personally involved in any delayed or denied medical care, or even that
he had the authority to act as a gatekeeper in the provision of care to Mr. Donald.
Moreover, prison officials (like Defendant Fairbairn) generally may rely on the
advice and course of treatment prescribed by medical personnel (such as Dr. Pearson).
See McRaven v. Sanders, 577 F.3d 974, 981 (8th Cir. 2009) (“[A] prison official may
rely on a medical professional’s opinion if such reliance is reasonable.”); Johnson v.
Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006) (“Except in the unusual case where it
would be evident to a layperson that a prisoner is receiving inadequate or inappropriate
treatment, prison officials may reasonably rely on the judgment of medical
professionals.”) (citation omitted). Here, the grievances show that Mr. Donald was
prescribed a course of treatment. It was reasonable for Defendant Fairbairn to rely on
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this course of treatment prescribed by a medical professional. Accordingly, the
deliberate indifference claim against Defendant Fairbairn fails.
iii. Defendant Hale
Defendant Hale appears to be a CDOC dentist. Mr. Donald alleges that
Defendant Hale was deliberately indifference to his medical needs because, after
reviewing both of Mr. Donald’s grievances against Dr. Pearson as well as his dental
history, Defendant Hale “did nothing to intervene or provide [Mr. Donald] with medical
treatment.” (Dkt. #9 at 15.) 5
First, it is unclear what Mr. Donald believes Defendant Hale could have done to
intervene during the contentious appointment with Defendant Pearson, particularly
given that there are no allegations that Defendant Hale was nearby or otherwise
available during that appointment. Second, other than conclusory allegations, nothing
suggests that Defendant Hale delayed or prevented Mr. Donald from seeking medical
treatment. Indeed, the response to Mr. Donald’s grievance shows that Defendant Hale
instructed Mr. Donald to submit a request for dental treatment, or to self-declare an
emergency if he was experiencing pain. (Dkt. #1-1 at 7.) Third, Mr. Donald was
receiving treatment. He had a treatment plan from Defendant Pearson that he elected
not to pursue because he did not agree that his wisdom teeth needed to be pulled. Mr.
5 The Court notes that Defendant Hale Simply denying a grievance is insufficient
to stating a claim for deliberate indifference. Scott v. Montoya, No. 17-cv-01364-KLM,
2019 WL 688053, at *7 (D. Colo. Feb. 15, 2019) (“Without more, dissatisfaction with the
result of . . . grievance requests [is] not sufficient to state a constitutional violation.”
(citing Sherratt, 545 F. App’x at 747)). Mr. Donald appears to acknowledge this, as he
states “Plaintiff only relies on the grievance as evidence of Defendant Hale having
adequate knowledge of plaintiff’s claims. Plaintiff does not maintain that simply because
Hale answered the grievance that he is culpable.” (Dkt. #9 at 15.)
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Donald has pointed to no case law stating the Eighth Amendment entitles him to
medical treatment with a provider of his choosing or a second medical opinion, and that
Hale is liable for failing to provide such options. Accordingly, the deliberate indifference
claim against Defendant Hale should be dismissed.
3. Supervisory Liability for Failure to Train and Supervise
The Court briefly addresses the Eighth Amendment claims against Brodeur,
Hale, Fairbairn, and Maul to the extent they are premised on supervisory liability.
Because Mr. Donald has failed to plead a constitutional claim for deliberate indifference,
his fourth and fifth claims for supervisory liability with respect to the Eighth Amendment
necessary fail. Doe v. Woodard, 912 F.3d 1278, 1290 (10th Cir. 2019) (“[s]upervisors
cannot be liable under § 1983 where there is no underlying violation of
a constitutional right by a supervisee.”); Sherman, 653 F. App’x at 589 (“Absent an
underlying constitutional violation, [an inmate’s] claim for supervisory liability fails.”).
II. Retaliation
Mr. Donald alleges that Dr. Pearson retaliated against him for filing the
grievances by verbally chastising him, forcefully shoving a mirror into his hand, and
failing to provide the requested dental treatment during the December 29, 2021 dental
appointment. He also alleges that Defendants Maul, Brodeur, Hale, and Fairbairn failed
to train or supervise their subordinates, which caused the First Amendment violation.
“Although retaliation is not expressly discussed in the First Amendment, it may
be actionable inasmuch as governmental retaliation tends to chill citizens’ exercise of
their constitutional rights.” Perez v. Ellington, 421 F.3d 1128, 1131 (10th Cir. 2005)
(internal citation omitted). To state a claim of unconstitutional retaliation under § 1983,
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Plaintiff must allege facts to demonstrate: (1) he was engaged in constitutionally
protected activity, (2) Defendants’ actions caused him to suffer an injury that would chill
a person of ordinary firmness from continuing to engage in that activity, and (3)
Defendants’ adverse action was substantially motivated as a response to Plaintiff’s
constitutionally protected activity. See Shero v. City of Grove, 510 F.3d 1196, 1203
(10th Cir. 2007).
A. Defendant Pearson
For the purposes of the motion to dismiss, Defendant Pearson does not contest
that Mr. Donald engaged in protected activity. (See Dkt. #34 at 7.) However, he argues
(as do the CDOC Defendants) that Mr. Donald has failed to allege that a person of
ordinary firmness would have been deterred by anything Dr. Pearson allegedly said or
did and “does not identify anything that could reasonably be viewed as retaliatory.” (Id.)
The Court disagrees. Mr. Donald has alleged that, after submitting grievances that he
was not receiving appropriate medical care, he was forced to read those grievances
aloud during a dental appointment, subjected to physical and verbal aggression, and
threatened with a dental procedure on teeth that he may not have needed. Further, Mr.
Donald alleges that Dr. Pearson made a veiled threat that he could make the surgeries
very painful, and Mr. Donald believed that Dr. Pearson would pull healthy teeth as
punishment for filing the grievances. (See Dkt. #9 at 8 (“Do you think it was wise to write
something like this when I’m the one who is going to perform a surgical procedure on
you?”).)
Further, Mr. Donald has plausibly alleged that Dr. Pearson’s retaliatory conduct
was substantially motivated by the protected activity of filing a grievance. Tenth Circuit
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case law allows an inference of whether the defendant’s response was “substantially
motivated” by protected conduct where evidence showed (1) the defendants were
aware of the protected activity; (2) the plaintiff directed his complaint to the defendants’
actions; and (3) the alleged retaliatory act “was in close temporal proximity to the
protected activity.” Allen v. Avance, 491 F. App’x 1, 6 (10th Cir. 2012) (quoting Gee v.
Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010)). All three of these factors were present
here.
Furthermore, Defendant Pearson is not entitled to qualified immunity as to the
First Amendment retaliation claim against him. It is clearly established that a prison
official may not retaliate against an inmate who files a grievance against him. See
Parker v. Ritter, No. 08-cv-00737–MSK–KLM, 2010 WL 1286081, at *9 (D. Colo. March
25, 2010) (citing Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir.1992)); Bell v.
Pollack, No. 07–cv–00496–REB–MEH, 2008 WL 652324, at *7–8 (D. Colo. March 10,
2008) (citing Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990); Purkey v. Green,
28 F. App’x 736, 746 (10th Cir.2001)) (noting that part of First Amendment right of
access to court included right to first file internal grievance against prison official and
finding that right to be free from retaliation for filing grievance clearly established).
Factual development may reveal that Mr. Donald was, in fact, the one who
became aggressive during the dental appointment, or that Defendant Pearson never
engaged in any retaliatory action but simply maintained that his course of treatment was
appropriate. But such are not presently before the Court and are more properly
addressed at the summary judgment stage. The Court, therefore, recommends that
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Defendant Pearson’s motion to dismiss be denied with respect to Mr. Donald’s First
Amendment retaliation claim.
B. Defendants Maul, Brodeur, Hale, and Fairbairn
Finally, Mr. Donald seeks to hold Defendants Maul, Brodeur, Hale, and Fairbairn
responsible for Dr. Pearson’s alleged retaliation because they failed to properly train
and supervise their subordinates. The CDOC Defendants argue that this claim fails
because Mr. Donald has failed to sufficiently allege the constitutionally deficient training
program at issue and does not state who the CDOC Defendants failed to supervise, or
how the alleged lack of supervision caused the constitutional violation. The Court
agrees.
A defendant may not be held liable for constitutional violations merely because
he or she holds a supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469,
479 (1986); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). A supervisor’s
liability under § 1983 “must be predicated on the supervisor’s deliberate indifference”
and a plaintiff “must show that an ‘affirmative link’ exists between the [constitutional]
deprivation and either the supervisor’s ‘personal participation, his exercise of control or
direction, or his failure to supervise.’” Green v. Branson, 108 F.3d at 1302. “[A]
supervisor . . . may be held liable where there is essentially a complete failure to train,
or training that is so reckless or grossly negligent that future misconduct is almost
inevitable.” Davidson v. Kansas, 2001 WL 533207, *4 (D. Kan. 2001) (quoting Meade v.
Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988)). Stated differently, “[s]upervisory liability
exists even without personal participation in the offensive act if supervisory officials
implement a policy so deficient that the policy itself is a repudiation of constitutional
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rights and is the moving force of the constitutional violation.” Thompkins v. Belt, 828
F.2d 298, 304 (5th Cir.1987) (holding that the existence of a constitutionally deficient
policy cannot be inferred from a single wrongful act).
To prevail on a theory of supervisory liability that is premised on a failure to train,
“a plaintiff must ordinarily show a defendant ‘had actual or constructive notice that a
particular omission in [a training] program cause[d officials] to violate citizens’
constitutional rights’ and nonetheless ‘made a conscious choice to retain [the] deficient
training program.’” Hurst v. Madera, No. 16-CV-01914-KMT, 2018 WL 684769, at *5 (D.
Colo. Feb. 2, 2018) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
Here, Mr. Donald fails identify a deficient training program. Nor are there
allegations explaining the causal connection between any deficient training or lack of
supervision and Dr. Pearson’s allegedly retaliatory conduct. General, conclusory
allegations such as those contained in Mr. Donald’s failure to train and supervise claims
cannot survive a motion to dismiss. 6
CONCLUSION
In light of the foregoing, it is hereby
RECOMMENDED that Defendants Fairbairn, Gouty, Hale, Brodeur, and Maul
(the “CDOC Defendants”) Rule 12(b)(6) Motion to Dismiss (Dkt. #34) be GRANTED and
6 To the extent Mr. Donald sues any of the Defendants in their official capacities,
he necessarily seeks injunctive relief. However, for the reasons set forth above, Mr.
Donald’s only viable claim is against Dr. Pearson for retaliation. Mr. Donald has not
plausibly alleged a claim for failure to train or supervise, see Crowson v. Washington
Cnty., 983 F.3d 1166, 1184 (10th Cir. 2020), nor has he adequately alleged that a policy
or custom played a part in any alleged constitutional violations. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (citing Monell v. New York City Dept. of Social
Servs, 436 U.S 658, 690 (1978)). Accordingly, any request for injunctive relief is
properly denied.
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the claims against Defendants Gouty, Fairbairn, Brodeur, Maul, and Hale in their
individual and official capacities be DISMISSED. It is further
RECOMMENDED that Defendant Douglas Pearson’s Motion to Dismiss
Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. #34) be
GRANTED with respect to Mr. Donald’s Eighth Amendment deliberate indifference
claim but DENIED with respect to his First Amendment retaliation claim.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148–53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412–13 (10th Cir. 1996).
Date: May 22, 2023
___________________________
N. Reid Neureiter
United States Magistrate Judge
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