Bird et al v. State of Wyoming et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
CHESTER L. BIRD, et al.,
Plaintiffs,
vs. 	Case No. 22-CV-152-NDF
STATE OF WYOMING, et al.,
Defendant.
OPINION AND ORDER ON PLAINTIFFS’ MOTION (ECF 50)
FOR RELIEF FROM ORDER
On November 8, 2022, pro se Plaintiffs Chester L. Bird, Ryan A. Brown, and
Richard B. Dague’s filed a motion (ECF 50) for relief from the October 20, 2022 opinion
and order dismissing their amended complaint and denying leave to further amend
(“October 20 Order”). 1 Plaintiffs seek relief under Federal Rule of Civil Procedure 60(b)
and seek reconsideration, arguing errors in law and in understanding their position or fact
allegations. 	Defendants oppose. 	ECF 54, 55. 	Plaintiffs filed a reply. 	ECF 58. 	For the
following reasons, the Court denies the motion.
I. 	Background
The Court assumes familiarity with the October 20 Order, wherein the Court
summarizes Plaintiffs’ allegations in detail. 	In a nutshell, Plaintiffs’ claims relate to the
1 The October 20 Order also required Bird to show cause why the Court should not impose further filing restrictions
against him. Bird addresses that aspect of the order by separate motion. ECF 53.
1:12 pm, 12/8/22
FILED
Margaret Botkins
Clerk of Court
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vaccination dates on their consent forms for a COVID-19 vaccine in March 2021 2 and the
accuracy of their medical records in general. 	They allege that Defendant Melanie
Martinez-Ellis, RN – then a Health Services Administrator for Corizon, Inc. (a/k/a
YesCare) at the Wyoming Medium Correctional Institute (“WMCI”) – allegedly falsified
their vaccination dates on April 10, 2021 to make it appear they gave informed consent to
the Janssen COVID-19 vaccine when it was not listed on their consent forms. They assert
she did so because they filed grievances against her for giving them the Janssen vaccine
before its information sheet was posted. They further allege that as of March 19, 2021, this
vaccine was known to have a risk of blood clotting in three out of a million persons.
The amended complaint contains fourteen claims. 	Defendants moved to dismiss,
and Plaintiffs did not respond. They instead moved to amend again. ECF 40. The October
20 Order dismissed all federal law claims with prejudice and remanded the state law claims.
II. 	Standards of Review
Plaintiffs frame their motion as one under Rule 60(b)(1), (3) and (6), and more
generally as a motion to reconsider under the standards for Rule 59(e) motions in Servants
of The Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). 	Rule 60(b) in relevant
part provides for relief from a final judgment or order because of (1) mistake, (3) fraud,
misrepresentation or misconduct by an opposing party, and (6) any other reason justifying
relief. Fed. R. Civ. P. 60(b)(1), (3), (6). Rule 60(b)(1) includes mistakes of law. See, e.g.,
Kemp v. United States, 142 S. Ct. 1856, 1861-62, 213 L. Ed. 2d 90 (2022). Rule 60(b)(3)
2 The background section of the October 20 Order had a typographical error referring to the vaccination as March 19,
2019. Plaintiffs allege it was March 19, 2021.
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requires Plaintiffs to “show clear and convincing proof of fraud, misrepresentation, or
misconduct. 	Moreover, the challenged behavior must substantially have interfered with
the aggrieved party's ability fully and fairly to prepare for and proceed at trial.” 	Zurich
N.A. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005) (internal citations and
quotation marks omitted). 	Rule 60(b)(6) relief is only available when none of the other
subsections apply; it is extraordinary and limited to exceptional circumstances. Kemp, 142
S. Ct. at 1861. 	“Rule 60(b) is not available to allow a party merely to reargue an issue
previously addressed by the court when the reargument merely advances new arguments
or supporting facts which were available for presentation at the time of the original
argument.” Yarbary v. Martin, 643 F. App’x 813, 817 (10th Cir. 2016) (quoting FDIC v.
United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998)).
Meanwhile, for Rule 59(e) motions to alter or amend judgments, “[g]rounds
warranting a motion to reconsider include (1) an intervening change in the controlling law,
(2) new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice. Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law.” 	Servants of The
Paraclete, 204 F.3d at 1012. 	It is inappropriate to “merely advance[] new arguments, or
supporting facts which were available at the time of the original motion.” Id.
In this case, Rule 60(b) is largely unnecessary to Plaintiffs’ motion, except to raise
their argument of misrepresentation or misconduct by Defendants. 	Plaintiffs’ other
arguments fit under either the standards of Rule 60(b)(1) mistakes of law or Rule 59(e)
clear errors, but any distinction in the legal standards for those rules is not dispositive here.
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And Plaintiffs do not raise any grounds for relief that are not already covered by Rule
60(b)(1) or (3), so they cannot turn to Rule 60(b)(6) for relief. Plaintiffs filed the motion
within the twenty-eight day time period allowed for a Rule 59(e) motion, and “a motion to
reconsider filed within ten [now 28] days after entry of judgment is considered a Fed. R.
Civ. P. 59(e) motion.” Servants of the Paraclete, 204 F.3d at 1012. Accordingly, the Court
addresses Plaintiffs’ argument of misrepresentation or misconduct under Rule 60(b)(3), but
the rest of the motion it treats as one for reconsideration under Rule 59(e).
Plaintiffs remain pro se. The Court accordingly construes their filings liberally.
III. 	Analysis
A. 	Failure to Exhaust Administrative Remedies
Plaintiffs first argue that there were no administrative procedures available to them
because the WDOC grievance process requires filing the first grievance form within ten
days of the conduct at issue. Plaintiffs allege Martinez-Ellis did not falsify the date on their
consent forms until more than ten days had passed from their vaccination dates. Thus, they
argue, they could not comply with the grievance process, and it was unavailable to them.
ECF 50 at 1-3. They further argue that Defendants’ pursuit of the exhaustion argument is
an intentional misrepresentation or misconduct warranting relief under Rule 60(b)(3).
The first problem with these arguments is that Plaintiffs could have made them in a
response to the motions to dismiss. Plaintiffs chose to not respond and instead sought only
to amend the amended complaint. They cannot raise these arguments now, and the Court
could stop here. Here, the Court will reach the merits of Plaintiffs’ exhaustion arguments
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to address their assertion of misrepresentation or misconduct by Defendants through their
counsel, which as will be seen, is unfounded.
Plaintiffs’ exhaustion argument fails on the merits. 	Plaintiffs have not shown the
grievance process was unavailable to them. 	“No action shall be brought with respect to
prison conditions under section 1983 of this title … by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 	42 U.S.C § 1997e(a) (part of the Prison Litigation Reform Act, “PLRA”).
“There is no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court. … However, … [i]t is not a pleading requirement for
prisoners’ complaints.” Jones v. Bock, 549 U.S. 199, 211–12 (2007).
When the complaint’s allegations affirmatively show that the prisoner did not
exhaust administrative remedies that were available to him, dismissal is nonetheless
appropriate. 	See, e.g., Williams v. Sirmon, 350 F. App’x 294, 299–300 (10th Cir. 2009).
“[D]etermin[ing] whether an inmate has exhausted his administrative remedies requires an
understanding of the remedies available and thus likely would require information from
the defendant as well as the inmate.” Aquilar–Avellaveda v. Terrell, 478 F.3d 1223, 1225–
26 (10th Cir. 2007). The Court must also “ensure that any defects in exhaustion were not
procured from the action or inaction of prison officials.” Id.
In this case, Plaintiffs make numerous allegations regarding what they did to comply
with the WDOC grievance process. They allege the forms they submitted and received (or
did not receive). 	ECF 33 ¶¶ 71-74, 78-79, 100-04, 109, 122-23, 125-26, 129. 	They cite
and quote from the “WDOC grievance policy” to allege what the Defendants were
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supposed to do in response to their grievances. ECF 33 ¶¶ 75, 130. 	Defendants then
attached that policy (WDOC Policy No. 3.100) as an exhibit to their motion to dismiss.
ECF 27-6. 3
Plaintiffs’ allegations affirmatively show that they did not follow the complete
grievance process for any of their federal claims. October 20 Order at 12-14. Specifically,
they did not file their grievances regarding the falsified vaccination dates within 30 days
of learning of the falsification. Although Plaintiffs now assert that the event at issue is the
vaccination on March 19, 2021 – and the falsification occurred more than ten days later
and was thus too late for them to file a grievance under Policy 3.100(2)(i) – this is not what
Plaintiffs allege. They allege the April 10, 2021 falsification of the vaccination date as the
event at issue. They filed their completed consent forms in November 2021 (in 21-cv-139-
SWS), so they must have received the falsified consent forms before then. 	Plaintiffs do
not argue any impediment to filing a grievance within ten days of receiving their completed
consent forms.
In any case, the Court gave Plaintiffs the benefit of the doubt regarding when they
should have realized the date on the form was wrong, and concluded that they still did not
timely file grievances on the issue. Even if Plaintiffs did not have reason to know of the
dates on the forms until January 2022, they still waited until April 2022 to file their
3 The Court properly considered WDOC Policy 3.100 without converting to summary judgment as a document central
to and referenced in the amended complaint whose authenticity Plaintiffs do not dispute. Gee v. Pacheco, 627 F.3d
1178, 1186 (10th Cir. 2010) (citing Jacobsen v. Desert Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). Plaintiffs for
instance rely on it to allege Martinez-Ellis was aware of their grievances, as pertinent to deliberate indifference.
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grievances. This was well over the 30 day limit. These allegations show Plaintiffs did not
exhaust the administrative remedy, and the fault does not lie with WDOC staff. 4
Plaintiffs’ Rule 60(b)(3) misrepresentation or misconduct argument thus fails
because Defendants’ failure to exhaust argument was meritorious. 	Making a correct
argument is neither a misrepresentation nor misconduct. Accordingly, the motion for relief
or reconsideration as to dismissal for failure to exhaust is denied.
B. 	Failure to Plausibly Allege Elements of the Federal Claims
Although the Court could have stopped with the exhaustion analysis, the Court went
on to address the merits of Plaintiffs’ federal claims. They now seek reconsideration as to
some of those claims.
1. 	First Amendment Retaliation
Plaintiffs argue their First Amendment retaliation claim against Martinez-Ellis is
plausible, and the Court erred in finding they alleged only a trivial or de minimis injury for
this claim. Again, this is an argument that Plaintiffs could have made in a response to the
motions to dismiss, and the Court could stop there.
This argument also fails on the merits. 	Plaintiffs quote from Poole v. County of
Otero, 271 F.3d 955 (10th Cir. 2001), abrogated on other grounds by Hartman v. Moore,
547 U.S. 250 (2006):
Therefore, the injury need not actually have deterred Mr. Poole from filing this
lawsuit. Cf Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) ("'[A] retaliation
claim may assert an injury no more tangible than a chilling effect of First
Amendment rights."); Bloch, 156 F.3d at 679 (noting that injuries such as emotional
distress are compensable under 1983).
4 As for exhaustion of Plaintiffs’ claims regarding the inaccuracy of their medical files generally and Defendant Ross’s
denial of access to the grievance process, Plaintiffs do not argue for reconsideration. The Court sees no error.
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Poole, at 960, citing Bloch v. Ribar, 156 F.3d 673, 679 (6th Cir. 1998) (discussing
compensable injury under 1983).
ECF 50 at 5.
But the October 20 Order does not even note the fact that Plaintiffs were not deterred
from filing this lawsuit as a mark against the retaliation claim. The order states:
The First Amendment retaliation claim against Martinez-Ellis requires Plaintiffs to
plausibly allege facts to support among other things “that the defendant’s actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity.” Shero v. City of Grove, 510 F.3d 1196,
1203 (10th Cir. 2007). “[T]rivial or de minimis injury will not support” the claim.
Id. Plaintiffs allege there was a risk that healthcare providers could have relied on
the wrong injection date, and that they suffered headaches, indigestion, and the like
from the stress of discovering Martinez allegedly intentionally falsified the injection
date. But they do not allege any actual injury, and their physical complaints are de
minimis. 	They do not plausibly allege First Amendment retaliation against
Martinez-Ellis.
Nonetheless, relying on Poole, Bloch and a string-cite of other cases (ECF 50 at 5),
Plaintiffs point to their alleged psychological ailments, which the October 20 Order did not
expressly address: “severe emotional distress, mental anguish, excessive and unwarranted
stress, anxiety, depression, insomnia, impaired sleeping, irritability, dyspepsia, shock,
fright and terror.” ECF 33 ¶ 135.
The reason the Court did not expressly address the alleged psychological ailments
is that they are not actionable for compensatory damages under the PLRA. 	42 U.S.C.
§ 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a … prison
… for mental or emotional injury suffered while in custody without a prior showing of
physical injury,” in relevant part). Prisoners thus cannot bring an action under § 1983 for
compensatory damages for emotional or psychological injuries unless they also have a
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“prior showing of physical injury.” 	Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir.
2001) (“The statute limits the remedies available, regardless of the rights asserted, if the
only injuries are mental or emotional”). Mr. Bird’s reply in support of his other pending
motion reflects that he is already aware of this restriction. ECF 59. Here, Plaintiffs seek
only compensatory and punitive damages, and make a residual request for “all other relief
that is appropriate under the circumstances.” ECF 33 at 41.
Minor physical symptoms do not suffice to avoid this statutory limitation. See, e.g.,
Moore v. Arguello, 2014 WL 4115915, at *3 (D. Colo. Aug. 21, 2014) (“mental anguish
and pain, distress, and headaches” are insufficient). 	Moore cites several circuit cases
holding that weight loss, appetite loss, insomnia, and depression are also insufficient. Id.
(citing Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998); Pearson v.
Welborn, 471 F.3d 732, 744 (7th Cir. 2006); and Geiger v. Jowers, 404 F.3d 371, 374 (5th
Cir. 2005)). 	Poole, Bloch, and Plaintiffs’ string-cited cases either (a) do not regard
prisoners, (b) note a prisoner’s claim was limited to nominal and punitive damages, (c)
dismiss all damages claims for other reasons and thus did not reach this issue, or (d) predate
the 1996 PLRA amendment in 1996 to include the physical injury requirement.
Thus, 	Plaintiffs 	cannot 	state 	a 	claim 	for 	compensatory 	damages 	based 	on
psychological or emotional injuries with only minor physical symptoms. This leaves their
request for punitive damages and residual request for “other relief.” Section 1997e(e) does
not preclude nominal damages, and if awarded this would allow a jury to still consider
punitive damages. 	Searles, 251 F.3d at 878. 	Section 1997e(e) also does not preclude
declaratory relief. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 808 (10th Cir. 1999). It
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is unclear whether liberal construction requires implying such requests in Plaintiffs’
residual relief category. 	In Perkins, the prisoner’s allegations “demonstrate[d] a clear
desire for injunctive relief,” thus liberal construction required the court to consider such a
request as implied. 165 F.3d at 808. In other cases, such as McKillip v. Norwood, No. 22-
3100, 2022 WL 17069582 (10th Cir. Nov. 17, 2022) (unofficially published), the court
affirmed dismissal for lack of physical injury and ongoing conditions without discussing
nominal damages. Id. at *2.
Even implying a request for nominal damages or declaratory relief for Plaintiffs, the
claim would still not survive. 	The Court sees no error in its October 20 conclusion that
Plaintiffs’ allegations do not plausibly support that Martinez-Ellis acted with the requisite
intent. 	Plaintiffs allege she falsified the date in retaliation for Bird’s April 9, 2021
grievance requesting a copy of his consent form, but the same allegations equally support
that the grievance brought to her attention that she had not yet completed the forms and
had to approximate the date due to lack of memory or documentation from three weeks
prior. This would be mere negligence, which does not suffice to show she was substantially
motivated by retaliation for the April 9, 2021 grievances. These allegations fail to “nudge
[Plaintiffs’] claims across the line from conceivable to plausible.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
As for declaratory relief, like injunctive relief, this would require Plaintiffs to allege
“the constitutional violation is ongoing, or [they have] a ‘good chance’ of suffering the
same injury in the future.” McKillip, 2022 WL 17069582, at *2 (citing Green v. Branson,
108 F.3d 1296, 1300 (10th Cir. 1997)). 	But Plaintiffs allege Martinez-Ellis is no longer
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with Corizon at WMCI, and they do not otherwise allege any facts suggesting a good
chance of repetition. 	In short, Plaintiffs cannot state a retaliation claim for any kind of
relief. The motion to reconsider Count I is denied.
2. 	Fourteenth Amendment Substantive Due Process Claims
Plaintiffs argue error in dismissing the Fourteenth Amendment substantive due
process claim (Count II). 	This claim alleges that as inmates of a state prison, Plaintiffs
have a Fourteenth Amendment right to accurate medical records. They allege Martinez-
Ellis violated this right in falsifying their vaccination date, and other Corizon employees
violated it in not keeping their medical records accurate in general.
“One strand of the substantive due process doctrine protects an individual's
fundamental liberty interest, while the other protects against the exercise of governmental
power that shocks the conscience.” 	Carrier v. Lundstedt, No. 13-CV-02933-PAB-CBS,
2014 WL 8103198, at *5 (D. Colo. Dec. 22, 2014), report and rec. adopted, 2015 WL
1041835 (D. Colo. Mar. 4, 2015) (quoting Seegmiller v. Laverkin City, 528 F.3d 762, 767
(10th Cir. 2008)). Here, Plaintiffs rely on the second strand. The claim requires “an abuse
of executive power so clearly unjustified by any legitimate objective of [the governmental
actor] … as to be barred by the Fourteenth Amendment.” 	Cnty. of Sacramento v. Lewis,
523 U.S. 833, 840 (1998). The Court has “always been reluctant to expand the concept of
substantive due process.” 	Id. at 842. 	It is “intended to secure the individual from the
arbitrary exercise of the powers of government, unrestrained by the established principles
of private right and distributive justice.” Id. at 845.
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“Our cases dealing with abusive executive action have repeatedly emphasized that
only the most egregious official conduct can be said to be arbitrary in the constitutional
sense, … thereby recognizing the point made in different circumstances by Chief Justice
Marshall, that it is a constitution we are expounding.” 	Lewis, 523 U.S. at 846 (internal
quotation marks omitted). “[T]he cognizable level of executive abuse of power [actionable
for substantive due process is] that which shocks the conscience.” Id.
[C]onscience shocking duplicates no traditional category of common-law fault, but
rather points clearly away from liability, or clearly toward it, only at the ends of the
tort law's spectrum of culpability. Thus, we have made it clear that the due process
guarantee does not entail a body of constitutional law imposing liability whenever
someone cloaked with state authority causes harm.
Id. at 848. 	Negligence is categorically below substantive due process protection. 	Id. at
849. 	“It is … behavior at the other end of the culpability spectrum that would most
probably support a substantive due process claim; conduct intended to injure in some way
unjustifiable by any government interest is the sort of official action most likely to rise to
the conscience-shocking level.” Id.
Plaintiffs argue that Martinez-Ellis’ falsification of the vaccination date does shock
the conscience, or at least that the Court improperly made a factual finding in concluding
otherwise. They point to an affidavit of Angela Ahrens they attach to their motion. ECF
51-2. Ms. Ahrens states that she is a registered nurse in the State of Michigan. She offers
opinions that Plaintiffs had not consented to the Janssen vaccine, that the false or inaccurate
date on their consent forms is a serious breach of the health care provider’s duties, and that
such put Plaintiffs at risk of serious injury or death.
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This is not persuasive for several reasons. 	First, these are matters that Plaintiffs
could have raised in or attached to a response but chose not to file one. It is too late now.
Moreover, even if the Court were to consider Ms. Ahrens’ opinions, the risk of serious
injury or death she identifies from the inaccurate vaccination dates is only that if Plaintiffs
developed complications from the vaccine, they could have been harmed by the inaccurate
date. 	ECF 51-2 at 3 ¶ 6. 	She does not contend that Plaintiffs have suffered any such
complications. 	It has been almost two years now. 	In addition, a serious breach of duty
does not equate to conduct shocking the conscience. 	Again, negligence (i.e., medical
malpractice) is below substantive due process protection. Lewis, 523 U.S. at 849.
As for Plaintiffs’ assertion that the Court improperly made a factual finding,
“[w]hether specific conduct shocks the conscience is a question of law for the court.”
Carrier, 2014 WL 8103198, at *5 (internal citation omitted, citing Graves v. Thomas, 450
F.3d 1215, 1220 (10th Cir. 2006)). 	The Court did not make a factual finding, but rather
applied the law to Plaintiffs’ fact allegations to hold that they do not meet this standard.
The Court sees no error in that conclusion. 	The only deliberate conduct Plaintiffs allege
for this claim is Martinez-Ellis’s falsification of the vaccination dates when three weeks
had passed without Plaintiffs reporting any complications. 	And as noted above, the
allegations equally support that she acted only negligently in doing so.
Either way, falsely completing the vaccination dates was not “so brutal and
offensive as to not comport with traditional ideas of fair play and decency.” Lewis, 523
U.S. at 847. For instance, in the context of a Fourth Amendment claim alleging a threat, a
healthcare provider’s allegedly pointing the finger at the prisoner and blaming him for her
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mistake in administering an incorrect medication did not shock the conscience. Jordan v.
Karas Health Care, Civil No. 5:16-cv-5161, 2017 WL 3405551, at *5 (W.D. Ark. July 19,
2017). Cf., Green v. Beck, 5:10-CT-3003-D, 2011 WL 5190591, at *4 (E.D.N.C. Oct. 31,
2011), aff'd in part, vacated in part on other grounds, 539 F. App’x 78 (4th Cir. 2013) (in
the context of an Eighth Amendment claim, being “almost given” another inmate’s
medication in retaliation did not shock the conscience).
Plaintiffs 	highlight 	the 	federal 	statute 	requiring 	informed 	consent 	before
administering an “emergency use authorization” drug. 21 U.S.C. § 360bbb-3(e)(1)(A)(ii).
But this statute applies only to the Secretary of Health and Human Services. It also does
not provide a private cause of action. See, e.g., Bridges v. Houston Methodist Hosp., 543
F. Supp. 3d 525, 527 (S.D. Tex. 2021), aff'd on other grounds sub nom. Bridges v.
Methodist Hosp., No. 21-20311, 2022 WL 2116213 (5th Cir. June 13, 2022); Johnson v.
Brown, 567 F. Supp. 3d 1230, 1256 (D. Or. 2021). 	The statute does not imply that
healthcare providers shock the conscience when they falsify an EUA vaccination date.
Plaintiffs also point out that people have died after receiving the Janssen vaccine,
citing ¶¶ 64-70 of the amended complaint. 	Here they allege the following regarding the
Janssen vaccine:
[D]ue to information acquired from news media reports prior to March 10,
2021, the Plaintiffs were generally aware of blood clot issues associated with the
Janssen Vaccine and were opposed to the Janssen Vaccine because of its serious
safety issues.
In fact, as of February 27, 2021, the FDA acknowledged:
• 	Thromboembolic events:
• 	Deep vein 	thrombosis: 6 	events (2 	serious; 5 	within 28 	days of
vaccination) vs. 2 events (1 serious; 2 within 28 days of vaccination).
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• 	Pulmonary embolism: 	4 events (3 serious; 	2 within 28 days of
vaccination) vs. 1 event (serious and within 28 days of vaccination).
• 	Transverse sinus thrombosis: 1 event (serious and within 28 days of
vaccination) vs. 0.
• 	Seizures: 4 events (1 serious; 4 within 28 days of vaccination) vs. 1
event (0 serious and 0 within 28 days following vaccination).
• 	Tinnitus: 6 events (0 serious; 6 within 28 days of vaccination, including
3 within 2 days of vaccination) vs. 0.
Plaintiffs do not explain why they believe seizures or tinnitus relate to blood clots.
More importantly, Plaintiffs do not allege any facts suggesting that Martinez-Ellis was
aware at the time of the alleged news or the February 27, 2021 FDA publication. Plaintiffs
allege only that they themselves were aware of it then.
These allegations also fail because the February 27, 2021 FDA document on which
Plaintiffs rely is actually the FDA’s “Decision Memorandum” (hereafter, the “Janssen
EUA”) 	authorizing 	the 	Janssen 	vaccine 	for 	emergency 	use, 	not 	pausing 	it. 5
https://www.fda.gov/media/146338/download, 	available 	from
https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-
covid-19/janssen-covid-19-vaccine. 	Indeed, later in the motion, Plaintiffs recognize this
fact. ECF 50 at 8 ¶ 45. Concerns regarding the Janssen vaccine’s blood clot issues do not
appear on the FDA webpage until an April 23, 2021 letter amending the EUA. 	See
https://www.fda.gov/media/147865/download. 	This 	was 	well 	after 	Martinez-Ellis
5 The Court can take judicial notice of facts that “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” F.R.E. 201(b), (d). This is true of publicly available documents on an
agency’s webpage. Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1212–13 (10th Cir. 2012). Thus, the
Court considers the documents on the FDA’s webpage and does not convert the motions to dismiss to summary
judgment. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
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allegedly falsified the vaccination dates. 6 	Accordingly, Plaintiffs’ allegations of media
news and FDA disclosures do not show Martinez-Ellis’s conduct shocks the conscience.
In short, there is no error in dismissing Count II for failure to state a claim.
3. 	Supervisory and Entity Liability Claims
Plaintiffs’ claims for supervisory and entity liability (Counts XII, XIII and XIV)
against respectively Corizon, Dr. Johnson, Ms. Koch, Director Shannon and Warden
Pacheco are apparently for substantive due process violations. 	Plaintiffs argue they
plausibly alleged deliberate indifference to support these claims. They again point to the
Janssen vaccine only having an EUA and the federal statute that is applicable only to the
Secretary of HHS.
The Court sees no error in the October 20 dismissal of the claims against the
supervisory Defendants; they either did not allege personal participation or did not
plausibly allege the requisite state of mind. If these claims assert substantive due process
violations, the alleged conduct does not shock the conscience for the same reasons the
Court held with respect to Martinez-Ellis.
If the supervisory claims regard the Eighth Amendment, the Court sees no error in
its conclusion that these Defendants did not act with deliberate indifference to an excessive
risk. 	Plaintiffs 	do 	not 	allege 	a 	sufficiently 	serious 	deprivation 	under 	the 	Eighth
Amendment. 	To be “sufficiently serious,” the deprivation must concern a basic human
6 In addition, the comparisons that Plaintiffs allege as to each serious reaction are between the Janssen vaccine and a
placebo. See, e.g., Janssen EUA at 7, 49-52. They are not comparisons to the Moderna or Pfizer vaccines, to which
Plaintiffs consented. Thus, even if Plaintiffs alleged that Martinez-Ellis was aware of media news or the FDA’s
publications at the time, they still do not allege that she was aware on April 10, 2021 of greater risk in the Janssen
vaccine versus the vaccines to which Plaintiffs consented.
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need. 	Wilson v. Seiter, 501 U.S. 294, 304–305 (1991). 	These include food, shelter,
clothing, medical care and reasonable safety. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.
1998). 	There’s a difference between providing medical care and maintaining accurate
records thereof. Plaintiffs do not cite – and the Court has not found – any legal support for
accurate medical records as a basic human necessity within the Eighth Amendment.
Plaintiffs also point to their allegation of a policy to not train, supervise, etc.,
medical staff to keep accurate medical records and to refuse to correct inaccuracies. ECF
33 ¶ 174. Plaintiffs argue these allegations infer deliberate indifference, citing Simpson v.
Univ. of Colo. Boulder, 500 F.3d 1170, 1178-79 (10th Cir. 2007) and City of Canton v.
Harris, 489 U.S. 378 (1989)).
Simpson and Canton hold that “a municipality may be liable under § 1983 for an
officer’s constitutional violation if the violation was the result of inadequate police training
and the municipality's failure to train the officer amounted to deliberate indifference to the
rights of those with whom [the untrained employees] come into contact.” 	Simpson, 500
F.3d at 1178 (internal citations omitted, citing Canton). 7
But the municipality’s deliberate indifference must be the moving force behind an
employee’s constitutional violation; it must be the actual cause of the individual officer’s
alleged constitutional violation. Canton, 489 U.S. at 389, 391. Therefore, entities cannot
be liable under § 1983 if their employees did not violate the constitution. Trigalet v. City
of Tulsa, 239 F.3d 1150, 1154 (10th Cir. 2001). 	The October 20 Order concluded that
7 This standard does not apply to the supervisory Defendants. “Deliberate indifference ... is defined differently for
Eighth Amendment and municipal liability purposes.” George ex rel. Bradshaw v. Beaver Cnty., 32 F.4th 1246, 1258
n.3 (10th Cir. 2022).
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Plaintiffs’ claims against Corizon’s employees fail to plausibly allege that any of them
violated Plaintiffs’ constitutional rights, and the Court sees no error therein. The October
20 Order omitted discussion of Corizon on these claims for that reason. The claims against
Corizon fail for lack of a constitutional violation by any of its employees.
In short, the Court sees no error in the dismissal of the entity and supervisory claims.
Finally, Plaintiffs’ motion does not point to any intervening change of the law,
evidence that was previously unavailable, or manifest injustice in the dismissal of their
claims. 	Nor 	does 	the 	Court 	see 	any. 	Their 	motion 	accordingly 	fails 	to 	show
reconsideration is warranted on any basis.
IV. 	Conclusion
For 	the 	reasons 	stated 	above, 	the 	Court 	DENIES 	Plaintiffs’ 	motion 	for
reconsideration and relief from the judgment (ECF 50).
Dated this 8th day of December, 2022.
NANCY D. FREUDENTHAL
UNITED STATES SENIOR DISTRICT JUDGE
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