UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DAMON ELLIS, Plaintiff-Appellee,

v. JOHN OLIVER, in his individual and official capacities, Defendant-Appellant, and UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; DAVID ALLRED, DO, in his individual and official capacities; JOHN/JANE DOES, in their individual and official capacities, Defendants. No. 16-1387 (D.C. No. 1:15- CV-01045-KLM) (D. Colo.)

ORDER AND JUDGMENT *

Before MATHESON , McKAY , and McHUGH , Circuit Judges.
Warden John Oliver appeals the magistra te judge’s denial of his qualified immunity defense to Eighth Amendment clai ms brought against him in his individual

* This order and judgment is not binding pr ecedent, except under the doctrines of law of this case, res judicata, and collateral estoppel. It may be c ited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 26, 2017
Elisabeth A. Shumaker Clerk of Court2 capacity. Reviewing the magistrate judge’s denial de novo, we reverse the ruling and remand with instructions for th e magistrate judge to dismis s the claims against Warden Oliver.
I. On October 20, 2013, inma te Damon Ellis injured his right ring finger at the United States Penitentiary in Florence, Colorado. Several da ys later, the prison medical staff examined Mr. Ellis and diagnosed him with a ruptured tendon requiring immediate surgery. Prison staff placed a request for a c onsultation with a hand surgeon. In late November, Mr. Ellis saw two outs ide medical providers who also advised urgent surgery. A third meeting with a prison physician mid-December confirmed this recommendation. Mr. Ellis saw a hand specialist in Janua ry 2014, who explai ned that a primary repair of the tendon was no longer possible because too much time had passed. The specialist suggested three options: (1) doi ng nothing, which would result in limited mobility, (2) removing the tend on, which would also result in limited mobility, or (3) conducting a two-stage surgery to first remove the tendon an d then, three months later, perform a tendon graft. Mr. E llis was eligible for transfer to a residential reentry center or halfway house as soon as March 2014. In February, a prison medical staff member, allegedly acting under “the di rection and decision of various Supervis ory Defendants,” informed Mr. Ellis that he coul d either receive the two-stage surgery and remain in prison until he healed, or he could be transferred to a halfway house without having the procedure. (Appellant’s App. at 18.) Mr. E llis chose not to delay his transfer out of the3 penitentiary, but also refused to sign a medical release. He now claims to have lost the use of his finger. In May 2015, Mr. Ellis filed this suit against the United States government, the Federal Bureau of Prisons, prison warden Jo hn Oliver in his official and individual capacities, prison physician David Allred in his official and indi vidual capacities, and five unnamed defendants in their official a nd individual capacities fo r violations of the Eighth Amendment and th e Federal Torts Claims Act. Th e defendants sought dismissal of all of Mr. Ellis’s claims under Federal Rule s of Civil Procedure 12(b)(1) and 12(b)(6). The parties consented to have the magistrate judge conduct all proceedings in the case, including ruling on the defendants’ motion for dismissal. The magistrate judge granted the de fendants’ motion as to Mr. Ellis’s constitutional claims against them in their official capacities a nd as to Dr. Allred in his individual capacity. The court further dismisse d Mr. Ellis’s tort clai ms on procedural and jurisdictional grounds. The magistrate judge rejected Warden Oliver’s qualified immunity defense, however, concluding that Mr. Ellis had alleged a plausible Eighth Amendment claim against the warden in his individual capacity. Warden Oliver challenges the magistrate judge’s denial of his qualified immunity defense on appeal.
II. We review the magistrate judge’s denial of Warden Oliver’s motion to dismiss based on qualified immunity de novo. See, e.g. , Brown v. Montoya , 662 F.3d 1152, 1162 (10th Cir. 2011). Under this standard, “all we ll-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favorable to the nonmoving4 party,” Moore v. Guthrie , 438 F.3d 1036, 1039 (10th Cir. 20 06) (internal quotation marks omitted) (alteration in original), but the pleadi ngs must “contain sufficient factual matter . . . to state a claim to relief th at is plausible on its face,” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotati on marks omitted). To achiev e “factual plausibility,” a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In setting out these plausible claims, the complain t must “make clear exactly who is alleged to have done what to whom , . . . as distinguished from coll ective actions against the state.” Kansas Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1215 (10th Ci r. 2011) (internal quotation omitted). Here, Mr. Ellis brings claims against Warden Oliver under Bivens , which “provides a ‘private right of action for da mages against federal officers’ who violate certain constitutional rights.” Pahls v. Thomas , 718 F.3d 1210, 12 25 (10th Cir. 2013) (quoting Iqbal , 556 U.S. at 675); see also Bivens v. Six Unkn own Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Mr. Ellis alleges that th e warden violated his Eighth Amendment rights by failing to provid e adequate medical care and treatment and by requiring an extension of incarceration to receive surgery. Under the doctrine of qualified immunity, “governmen t officials are not subject to damages liability for the performance of their discretionary functions when their conduct does not violate clearly established statutory or c onstitutional rights of which a reasonable pers on would have known.” Buckley v. Fitzsimmons , 509 U.S. 259, 26 8 (1993) (internal quotation marks omitted). Thus, to survive Wa rden Oliver’s 12(b)(6) motion, Mr. Ellis must allege a5 plausible violation of his clea rly established constitutional ri ghts sufficient to overcome a qualified immunity defense. In analyzing a qualified immunity defense, this court must consider (1) whether the plaintiff’s alleged facts make out a viol ation of a constitutional right, and (2) whether the right at issue was clearly establishe d at the time of the defendant’s alleged misconduct. Leverington v. City of Colo. Springs , 643 F.3d 719, 732 (10th Cir. 2011). Accordingly, we first determine whether M r. Ellis has alleged a plausible constitutional violation. The specific requirements to establish a Bivens claim vary, depending on the constitutional right at issue. See Iqbal , 556 U.S. at 676; Pahls , 718 F.3d at 1225. Regardless of these differences, every Bivens action requires the plaintiff to plead facts showing that each defendant violated the Co nstitution through his or her “own individual actions.” Iqbal , 556 U.S. at 676 (holding that “vic arious liability” is inapplicable to
Bivens claims). These “specific actions” must show each defendant’s personal involvement in the alleged constitutional violation. Pahls , 718 F.3d at 1225-26. The plaintiff must also show that each defenda nt “caused the compla ined of constitutional harm” and “acted with the state of mind requi red to establish the alleged constitutional deprivation.” Id. at 1225 (quoting Dodds v. Richardson , 614 F.3d 1185, 1199 (10th Cir. 2010)); see also Schneider v. City of Grand Junction Police Dep’t , 717 F.3d 760, 767 (10th Cir. 2013). Here, Warden Oliver concedes that Mr. E llis’s constitutional rights appear to have been violated by someone. (Appellant’s Repl y Br. at 3.) He maintains, however, that6 Mr. Ellis’s complaint does not allege facts sufficient to plausibly establish that the warden personally violated Mr. Ellis’s constitutional rights with the requisite state of mind. ( Id. at 3-4.) After reviewing the pleadings in the light most favorable to Mr. Ellis,

we concur. The most direct allegation of Warden Oliver’s personal involvement in Mr. Ellis’s constitutional harm is the claim that the pr ison staff member acte d “pursuant to the direction and decision of various Supervisory Defendants” in telling Mr. Ellis that he had to choose between treatment and continued inca rceration. (Appellant’s App. at 18.) The complaint identifies “Superv isory Defendants” as “Def endant Oliver and those Defendants Jane/John Doe 1- 5 who have supervisory responsibilities.” ( Id. at 17.) As Warden Oliver correctly argues, the term “various” is am biguous as to which of the six “Supervisory Defendants” are being accused, and it may not even include the warden. The complaint contains no specific allegations of Warden Oliver’s actions separate from the other defendants. As this court has pr eviously held, an “undi fferentiated contention that ‘defendants’ infringed [a plaintiff’s ] rights” is insuffi cient to meet the Bivens pleading requirements. Pahls , 718 F.3d at 1225-26; see also Brown , 662 F.3d at 1165. Mr. Ellis argues the complaint adequately alleges Warden Oliver’s individual actions because the warden mu st have known about Mr. Ellis ’s condition, pressing need for surgery, and visit to the outside specialis t by virtue of his supe rvisory role at the prison. (Appellee’s Br. at 18-19.) This court previously considered a similar claim that a warden’s position necessarily made him aware of an inmate’s deteriorating mental health, ultimately concluding that it is “not plausible to infer that a warden is aware of7 everything that happens to eac h inmate in his custody.” Vega v. Davis , 572 F. App’x 611, 618 (10th Cir. 2014) (int ernal quotation marks omitted ). And Mr. Ellis presents no additional factual allegations to support his ba re assertion that Warden Oliver “knew or should have known” about th e need for medical treatment and the resulting constitutional harm. ( See Appellant’s App. at 15.) Ultimately, Mr. Ellis has fa iled to identify any “specific actions taken by [the warden], or specific policies over whic h [the warden] possessed supervisory responsibility, that violated [his] clearl y established constitutional rights.” Pahls , 718 F.3d at 1228. While this court is sy mpathetic to the informational disparity 1 between a prisoner and prison officials, especially in the pre-discovery context, something more is required to establish a constitutional violatio n and overcome the pres umption of qualified immunity. See id. at 1227; Iqbal , 556 U.S. at 677-679. Since Mr. Ellis has failed to allege f acts plausibly showing that the warden’s individual actions violated hi s constitutional rights, he has also failed to show that Warden Oliver caused the constitu tional harm and did so with the requisite state of mind. Furthermore, because we conclude that Mr. E llis failed to plead facts sufficient to show a plausible constitutional viola tion committed by Warden Olive r, we need not reach the

1 But see, e.g. , Bustos v. United States , No. 08-CV-00153-L TB-MEH, 2009 WL 416511, at *3 (D. Colo. Feb. 18, 2009) (“The Court sees utility for judicial efficiency and fairness to the parties in allowing . . . limite d discovery into the id entities of the John Doe defendants [prior to ruling on the defe ndants’ pending motion to dismiss].”); see also Crawford-El v. Britton, 523 U.S. 574, 593 n. 14 (1998) (“ . . . [L]imited discovery may sometimes be necessary before the distri ct court can resolve a motion for summary judgment based on qualified immunity.”) Th e issue of allowing limited discovery into the identities of the John/Jane Doe defendants was neither raised nor decided in this case.8 second prong of the analysis to determine whether the right that Warden Oliver allegedly violated was clearly established.
III. We accordingly REVERSE and REMAND this appeal with instructions to dismiss the claims against Wa rden Oliver without prejudice based on qualified immunity.

ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge