Miller v. Grokett et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00148-SKC-CYC
DWAYNE A MILLER, JR.,
Plaintiff,
v.
CHRISTINA GROKETT,
Defendant.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Contending that the plaintiff has not sufficiently pleaded deliberate indifference to a
serious medical need to state an Eighth Amendment claim, defendant Christina Grokett moves
for dismissal of the claims against her. ECF No. 65. Because the plaintiff fails to plead facts
showing causation or knowledge of a substantial risk with respect to his complaint of a delayed
orthopedic referral, and because his desire for a wheelchair or infirmary placement instead of
crutches is the sort of treatment decision the Eighth Amendment does not cover, the Court
recommends that the claims be dismissed without prejudice.
BACKGROUND
According to the Amended Complaint, whose factual allegations the Court accepts as
true for this motion, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), on July 10, 2023, Plaintiff
Dwayne A. Miller broke his ankle and foot while incarcerated at the Limon Correctional Facility
(LCF). See ECF No. 12 at 7, 12. That same day, a doctor addressed the plaintiff’s injury and left
instructions that the plaintiff be referred to an orthopedic specialist within one week. Id. at 14.
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The doctor also called the defendant, LCF’s nursing head, to discuss the importance of that
follow-up visit. Id. at 3, 7.
Two days later, the plaintiff requested housing in the infirmary and a wheelchair,
informing the defendant that the crutches he had been given rendered him feeling vulnerable in
his pod, saddled him with an uncomfortable three-block trek to the chow hall, and left him
without a shower specially equipped for his injury. Id. at 13. Meanwhile, the doctor’s referral
instructions went unheeded until Kelly Wear, another of LCF’s healthcare providers, submitted
an orthopedic referral some three months after the injury. Id. at 14. A little over a month later,
the plaintiff saw an orthopedist. Id.
On January 12, 2024, the plaintiff filed his initial complaint reciting thirteen claims for
relief. ECF No. 1. Because the plaintiff is a prisoner seeking redress from a government
employee, the Court screened his complaint pursuant to 28 U.S.C. § 1915A, ordering certain
amendments to the complaint. ECF No. 5.
The plaintiff made those amendments on April 5, 2024, asserting ten claims against five
defendants. ECF No. 12. Again, fulfilling its obligation under 28 U.S.C. § 1915A, the Court
dismissed Counts 3, 9, and 10 of the Amended Complaint, leaving only Grokett and Wear as
defendants. ECF Nos. 16, 18, & 50. On July 30, 2024, the plaintiff voluntarily dismissed his
claims against Wear for failure to complete service, leaving only Counts 1, 4, and 6, each
asserted against defendant Grokett. ECF No. 64.
The case was referred to the assigned magistrate judge for all motions, ECF No. 44, and
this motion followed, seeking dismissal of those counts pursuant to Fed. R. Civ. P. 12(b)(6).
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ANALYSIS
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.” As such, a plaintiff’s
“failure to state a claim upon which relief can be granted” warrants dismissal under Rule
12(b)(6). A district court faced with a Rule 12(b)(6) motion evaluates whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). But “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id. Thus, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. Instead, a court
looks to whether “the plaintiff” has “plead[ed] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Measured by
that standard, the Amended Complaint falls short.
Counts 1 and 4 are of the same ilk, each asserting an Eighth Amendment claim for the
delay in the plaintiff’s orthopedic referral. That amendment prohibits “cruel and unusual
punishments.” U.S. Const. amend. VIII, which includes “deliberate indifference to serious
medical needs of prisoners” because such conduct “constitutes the ‘unnecessary and wanton
infliction of pain.’” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). Where such a claim is alleged, “[t]he test for constitutional liability of
prison officials ‘involves both an objective and a subjective component.’” Mata v. Saiz, 427 F.3d
745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
The defendant first trains her lens on the objective prong, targeting the Amended
Complaint’s failure to connect any alleged harm with the referral delay. ECF No. 65 at 7. “The
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objective component is met if the deprivation is ‘sufficiently serious,’” that is, “one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). But “[o]nce the prisoner selects the harm” that is
the subject of his complaint, “the focus of the objective prong should be solely on whether that
harm is sufficiently serious.” Mata, 427 F.3d at 753. Here, the harm alleged is the plaintiff’s pain
resulting from broken bones, and “broken bones have been held to be sufficiently serious for
purposes of Eighth Amendment claims.” Fresquez v. Baldwin, No. 08-cv-01233-CMA-CBS,
2009 WL 2514414, at *2 (D. Colo. Aug. 13, 2009); see Inman v. Stock, 248 F. App’x 892, 895
(10th Cir. 2007) (unpublished) (assuming without deciding that a broken bone is “sufficiently
serious to satisfy the objective inquiry”). Plaintiff’s alleged harm is therefore sufficiently serious.
Instead, the defendant’s argument is better construed as contesting causation. Following
resolution of the objective prong, “the court can turn to causation and the subjective prong.”
Mata, 427 F.3d at 753. Where, as here, the claim rests upon a delay in medical care, to satisfy
causation “the plaintiff” must “show that the delay resulted in substantial harm,” that is, “lifelong
handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th
Cir. 2001). This is where the Amended Complaint falters because it lacks facts showing “that
any delay in referring [the plaintiff] to an orthopedic specialist caused him harm.” McVay v.
Obaisi, No. 18-cv-6244, 2023 WL 2646678, at *12 (N.D. Ill. Mar. 27, 2023); see Williams v.
Hasenmyer, No. Civ-22-174-GLJ, 2023 WL 8816369, at *7 (E.D. Okla. Dec. 20, 2023)
(dismissing claim because “Plaintiff does not sufficiently allege that the 26-day delay in
obtaining an MRI caused any additional or substantial harm”); Jordan v. Wexford Health
Sources, Inc., No. 3:15-cv-00105-SCW, 2017 WL 4224024, at *5 (S.D. Ill. Sept. 22, 2017)
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(“[H]ere, there is no indication that Plaintiff suffered negative consequences from not being sent
to his follow-up appointment.”). To be sure, the plaintiff summarily avers that the defendant
“harmed me by prolonging my pain and suffering,” ECF No. 12 at 7, 11, but a court cannot
credit that sort of conclusory allegation. Iqbal, 556 U.S. at 678.
Nor does the plaintiff supply other facts from which the Court could infer causation. He
notes, for instance, that he has now seen an orthopedist, but gives no detail on the orthopedist’s
assessment, if any exists, of the effect of the delay, see Vigil v. Raemish, 18-cv-01499-WJM-
NRN, 2019 WL 1429281, at *7 (D. Colo. Mar. 29, 2019) (noting orthopedic specialist’s ire
about delay and uncertainty “due to the delay . . . if anything could be done short of surgery”);
and while he highlights a recommendation for a one-week follow-up with an orthopedist, ECF
No. 12 at 7, 11, the plaintiff alleges nothing indicating “that further delay in treatment of his
injury could result in an adverse outcome.” Williams, 2023 WL 8816369, at *8. Indeed, the
plaintiff offers no indication that his visit with the orthopedist even alleviated his situation.
While the Court “construe[s]” a “pro se litigant’s pleadings . . . liberally and” holds them “to a
less stringent standard than formal pleadings drafted by lawyers,” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), it cannot “supply additional factual allegations to round out a
plaintiff’s complaint.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997). Because
the Amended Complaint lacks facts that would allow the Court to infer causation, the Court
cannot find causation adequately pleaded in Counts 1 and 4.
A similar lack of detail plagues the Amended Complaint with respect to the subjective
prong. “The subjective component is satisfied if the 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 [s]he must also draw
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the inference.’” Mata, 427 F.3d at 751 (quoting Farmer, 511 U.S. at 837 (modification in
Mata)). A plaintiff can satisfy this component either under a failure-to-treat theory or under a
gatekeeper theory alleging that “prison officials prevent[ed] an inmate from receiving treatment
or den[ied] him access to medical personnel capable of evaluating the need for treatment.”
Sealock, 218 F.3d at 1211. Counts 1 and 4 present the latter theory.
“Whether a prison official had the requisite knowledge of a substantial risk is a question
of fact subject to demonstration in the usual ways, including inference from circumstantial
evidence such as whether the risk was obvious.” Lucas v. Turn Key Health Clinics, LLC, 58
F.4th 1127, 1137 (10th Cir. 2023) (internal quotation marks omitted); see Self v. Crum, 439 F.3d
1227, 1232 (10th Cir. 2006) (“A claim is therefore actionable only in cases where the need for
additional treatment or referral to a medical specialist is obvious.”). “Circumstantial evidence of
obviousness in a missed diagnosis or delayed referral appears in contexts including (1)
recognition of inability to treat and still declining or unnecessarily delaying referral; (2)
condition is so obvious a layman would recognize it; or (3) complete denial of care in the face of
a medical emergency.” Lucas, 58 F.4th at 1139. “An official disregards risk when he fails to take
reasonable measures to abate the risk.” Id. at 1137. But “[i]n the end, the ‘negligent failure to
provide adequate medical care, even one constituting medical malpractice, does not give rise to a
constitutional violation.’” Self, 439 F.3d at 1233 (quoting Perkins v. Kan. Dep’t of Corrections,
165 F.3d 803, 811 (10th Cir. 1999)). Here, the Amended Complaint offers only a call between
the plaintiff’s doctor and the defendant discussing the general importance of an orthopedic
follow-up to show the requisite knowledge. See ECF No. 12 at 7. As such, this “is unlike other
cases where courts have” found the requisite knowledge based on a deviation from a specialist’s
instructions. Jordan, 2017 WL 4224024, at *5. “Unlike the suit at-bar,” for example, “in Zaya [v.
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Sood, 836 F.3d 800 (7th Cir. 2016)], the specialist did not simply direct that the inmate see him
again in” a week; “rather, the specialist also explained the risks involved with a further delay of a
follow-up.” Id.; see Williams, 2023 WL 8816369, at *7, 8 (alleging notification to defendant
“that further delay of care for Plaintiff could cause an adverse outcome” and that defendant
“could have hastened” transfer to outside provider but “did not, despite knowing the risk of
further delay”). Without more, the Amended Complaint lacks facts showing the defendant’s
awareness of a substantial risk of serious harm. Indeed, because the Amended Complaint never
draws a causal connection between the delayed referral and a specific adverse outcome, it is
difficult to ascertain what risk the defendant was supposed to foresee. To be sure, the Amended
Complaint suggests that the plaintiff made further complaints to Wear about pain from his injury,
ECF No. 12 at 12, but that does little to burnish his claim that the defendant remained
deliberately indifferent to the risk posed by a delayed orthopedic referral.
The plaintiff protests. He notes, for example, that it was Wear, not the defendant, who
ultimately put in the referral. ECF No. 86 at 3. But that does not change the analysis. Although
“[t]he fact that” a plaintiff “was later referred for treatment by others does not erase” a
defendant’s “failure to act at the time it was obvious” the plaintiff “faced a substantial risk,”
Lucas, 58 F.4th at 114, a plaintiff must still allege causation and the subjective component of
deliberate indifference with respect to the defendant. The plaintiff has not done so here.
The short of it is that the Amended Complaint must, but does not, allege how additional
harm came from the delayed referral and how the defendant was aware of the risk of such harm.
The claims alleged in Counts 1 and 4 should therefore be dismissed.
The defendant next challenges Count 6, which asserts an Eighth Amendment claim
surrounding her denial of the plaintiff’s request for a wheelchair and infirmary placement instead
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of crutches. ECF No. 12 at 13. Because the defendant concedes the objective prong, ECF No. 65
at 7 n.3, the Court evaluates only whether the Amended Complaint sufficiently alleges the
subjective prong.
It does not. “[T]he subjective component is not satisfied, absent an extraordinary degree
of neglect, where a doctor merely exercises his considered medical judgment.” Self, 439 F.2d at
1232. And courts have held regularly that “[t]he decision to allow crutches instead of a
wheelchair is a medical judgment.” Cadena v. El Paso County, No. EP-16-CV-00209-FM-RFC,
2017 WL 11621477, at *11 (W.D. Tex. Dec. 19, 2017), report and recommendation adopted,
2018 WL 11337662 (W.D. Tex. Mar. 26, 2018); see, e.g., Owens v. Enfinger, No. 3:18cv2121-
RV-HTC, 2020 WL 6811486, at *5 (N.D. Fla. Sept. 29, 2020) (stating that “Plaintiff’s complaint
about being prescribed crutches over the weekend, presumably, rather than a wheelchair, does
not rise to a constitutional violation” and collecting cases), report and recommendation adopted,
2020 WL 6806767 (N.D. Fla. Nov. 19, 2020). They have held further that “[t]he decision to issue
the plaintiff crutches instead of a wheelchair when he had one good leg was not so far afield as to
‘demonstrate[d] an absence of professional judgment, that is, that no minimally competent
professional would have so responded under those circumstances.’” Sistrunk v. Khan, 931 F.
Supp. 2d 849, 859 (N.D. Ill. 2013) (quoting Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011)). Thus, where the plaintiff’s case “boils down to a contention that he had a right to a
particular course of treatment: the use of a wheelchair” or, here, a stay in the infirmary, the Tenth
Circuit “and our sister circuits have rejected such an expansive view of the rights protected by
the Eighth Amendment.” Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006). So it is
here.
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Nevertheless, the plaintiff contends that the harms occasioned by his use of crutches
salvage his claim. They do not. He emphasizes, for instance, that he informed the defendant of
general vulnerability caused by using crutches in his unit, ECF No. 86 at 4, but “the plaintiff’s
allegations must furnish more than a conclusory claim of being afraid and aggravated.” Riddle v.
Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996). He complains of the discomfort occasioned by
using crutches to get to the chow hall, ECF No. 86 at 4, but denying “permission to receive
meals in his cell rather than walk to the dining facility for meals” on crutches “does not
demonstrate deliberate indifference.” Williams v. Byrd, No. 2:17-cv-00114-JPH-DLP, 2019 WL
367620, at *8 (S.D. Ind. Jan. 30, 2019). And he points to a shower not equipped for one on
crutches, ECF No. 86 at 4, but even where an inmate “had specifically warned defendants that he
was at a heightened risk of falling” because of the use of crutches, because such risks are “no
greater than the daily hazards faced by any member of the general public who is on crutches, . . .
there is nothing special or unique about plaintiff’s situation that will permit him to
constitutionalize what is otherwise only a state-law tort claim.” Reynolds v. Powell, 370 F.3d
1028, 1032 (10th Cir. 2004). In the end, the plaintiff’s “right is to medical care—not to the type
or scope of medical care which he personally desires.” Kneen v. Zavaras, 568 F. App’x 580, 585
(10th Cir. 2014) (unpublished). His claim to the contrary must therefore fail.
Having concluded that the plaintiff’s claims do not set forth a constitutional violation,
“the lack of a constitutional violation makes it unnecessary to further address qualified
immunity.” Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1214 (10th Cir. 2006).
The Court therefore need not and does not address the assertion of that defense here.
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CONCLUSION
For the foregoing reasons, the Court RECOMMENDS granting Defendant Christina
Grokett’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 65. But because the
plaintiff has not yet had the opportunity to amend his complaint in response to the analysis here,
amendment would not yet be futile, see Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir.
1997), and, accordingly, the Court recommends that the dismissal be without prejudice.1
Respectfully submitted this 9th day of January, 2025, at Denver, Colorado.
BY THE COURT:
Cyrus Y. Chung
United States Magistrate Judge
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1).
Additionally, the failure to file written objections to the proposed findings and recommendations
within fourteen days after being served with a copy may bar the aggrieved party from appealing
the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by
the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply
with the District Judge’s practice standards for any specific requirements concerning the filing
and briefing of objections.
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