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 magistrate judge’s denial of his qualified 

immunity defense to Eighth Amendment claims brought against him in his individual 

 * This order and judgment is not binding precedent, except under the doctrines of 

law of this case, res judicata, and collateral estoppel. It may be cited, 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 Court
2 

capacity. Reviewing the magistrate judge’s denial de novo, we reverse the ruling and 

remand with instructions for the magistrate judge to dismiss the claims against Warden 

Oliver. 

I. 

On October 20, 2013, inmate Damon Ellis injured his right ring finger at the 

United States Penitentiary in Florence, Colorado. Several days 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 consultation with a hand surgeon. In late 

November, Mr. Ellis saw two outside 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 January 2014, who explained that a primary 

repair of the tendon was no longer possible because too much time had passed. The 

specialist suggested three options: (1) doing nothing, which would result in limited 

mobility, (2) removing the tendon, which would also result in limited mobility, or (3) 

conducting a two-stage surgery to first remove the tendon and then, three months later, 

perform a tendon graft. Mr. Ellis 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 direction and decision of various Supervisory Defendants,” 

informed Mr. Ellis that he could 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. Ellis chose not to delay his transfer out of the 
3 

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 John Oliver in his official and individual 

capacities, prison physician David Allred in his official and individual capacities, and 

five unnamed defendants in their official and individual capacities for violations of the 

Eighth Amendment and the Federal Torts Claims Act. The defendants sought dismissal 

of all of Mr. Ellis’s claims under Federal Rules 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 defendants’ motion as to Mr. Ellis’s 

constitutional claims against them in their official capacities and as to Dr. Allred in his 

individual capacity. The court further dismissed Mr. Ellis’s tort claims 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 well-pleaded factual allegations in the . . . 

complaint are accepted as true and viewed in the light most favorable to the nonmoving 
4 

party,” Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006) (internal quotation marks 

omitted) (alteration in original), but the pleadings must “contain sufficient factual matter . 

. . to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (internal quotation marks omitted). To achieve “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 complaint must “make clear exactly who is alleged to have done 

what to whom, . . . as distinguished from collective actions against the state.” Kansas 

Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (internal quotation 

omitted). 

Here, Mr. Ellis brings claims against Warden Oliver under Bivens, which 

“provides a ‘private right of action for damages against federal officers’ who violate 

certain constitutional rights.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) 

(quoting Iqbal, 556 U.S. at 675); see also Bivens v. Six Unknown Named Agents of Fed. 

Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Ellis alleges that the warden violated his 

Eighth Amendment rights by failing to provide adequate medical care and treatment and 

by requiring an extension of incarceration to receive surgery. Under the doctrine of 

qualified immunity, “government officials are not subject to damages liability for the 

performance of their discretionary functions when their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would have 

known.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (internal quotation marks 

omitted). Thus, to survive Warden Oliver’s 12(b)(6) motion, Mr. Ellis must allege a 
5 

plausible violation of his clearly established constitutional rights 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 violation of a constitutional right, and (2) whether 

the right at issue was clearly established 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 Mr. 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 Constitution through his or her “own individual 

actions.” Iqbal, 556 U.S. at 676 (holding that “vicarious 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 defendant “caused the complained of constitutional 

harm” and “acted with the state of mind required 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. Ellis’s constitutional rights appear to have 

been violated by someone. (Appellant’s Reply Br. at 3.) He maintains, however, that 
6 

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 prison staff member acted “pursuant to the 

direction and decision of various Supervisory Defendants” in telling Mr. Ellis that he had 

to choose between treatment and continued incarceration. (Appellant’s App. at 18.) The 

complaint identifies “Supervisory Defendants” as “Defendant 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 ambiguous 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 previously held, an “undifferentiated contention 

that ‘defendants’ infringed [a plaintiff’s] rights” is insufficient 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 must have known about Mr. Ellis’s condition, pressing need 

for surgery, and visit to the outside specialist by virtue of his supervisory 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 of 
7 

everything that happens to each inmate in his custody.” Vega v. Davis, 572 F. App’x 

611, 618 (10th Cir. 2014) (internal quotation marks omitted). And Mr. Ellis presents no 

additional factual allegations to support his bare assertion that Warden Oliver “knew or 

should have known” about the need for medical treatment and the resulting constitutional 

harm. (See Appellant’s App. at 15.) 

Ultimately, Mr. Ellis has failed to identify any “specific actions taken by [the 

warden], or specific policies over which [the warden] possessed supervisory 

responsibility, that violated [his] clearly established constitutional rights.” Pahls, 718 

F.3d at 1228. While this court is sympathetic to the informational disparity1

 between a 

prisoner and prison officials, especially in the pre-discovery context, something more is 

required to establish a constitutional violation and overcome the presumption of qualified 

immunity. See id. at 1227; Iqbal, 556 U.S. at 677-679. 

Since Mr. Ellis has failed to allege facts plausibly showing that the warden’s 

individual actions violated his constitutional rights, he has also failed to show that 

Warden Oliver caused the constitutional harm and did so with the requisite state of mind. 

Furthermore, because we conclude that Mr. Ellis failed to plead facts sufficient to show a 

plausible constitutional violation committed by Warden Oliver, we need not reach the 

 1 But see, e.g., Bustos v. United States, No. 08-CV-00153-LTB-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 . . . limited discovery into the identities of the John Doe 

defendants [prior to ruling on the defendants’ 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 district court can resolve a motion for summary 

judgment based on qualified immunity.”) The 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 Warden Oliver without prejudice based on qualified immunity. 

 ENTERED FOR THE COURT 

 Monroe G. McKay 

 Circuit Judge