IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02457–PAB–KMT

ASHANTI BLACK,

Plaintiff,

v. 

DR. JAMES THALKEN, DDS #15173,

SHARON PHILLIP, Nurse Practitioner, and

DR. WORMER, Physician, 

Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This matter is before the court on “Defendants Phillip and Dr. Wormer’s Motion to

Dismiss” (Doc. No. 32 [Phillip’s Mot.], filed June 7, 2012). Plaintiff filed his response on June

28, 2012. (Doc. No. 35 [Resp. Phillip’s Mot.].) Defendants did not reply. 

Also before the court is “Defendant Dr. Thalken’s Motion to Dismiss” (Doc. No. 63

[Thalken’s Mot.], filed October 30, 2012). Plaintiff filed his response on November 19, 2012.

(Doc. No. 66 [Resp. Thalken’s Mot.].) Defendant did not reply. These motions are ripe for

review and recommendation. 

FACTUAL BACKGROUND

The following facts are taken from Plaintiff’s “Amendment Prisoner Complaint” (Doc.

No. 16 [“Am. Compl.”], filed March 1, 2012). Plaintiff filed his case pursuant to 42 U.S.C. §

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1983, alleging the defendants acted with deliberate indifference to his medical needs in violation

of the Eighth Amendment when he was an inmate at the Fort Lyons Correctional Facility

(“FLCF”). (See id.) In Claim One, Plaintiff alleges on September 21, 2010, he had minor dental

surgery to remove a small amount of gum tissue to allow his new dentures to fit better. (Id. at 4.) 

Plaintiff alleges Defendant Thalken “was unable to sedate [his] mouth effectively,” which

resulted in “unbareable [sic] pain and suffering.” (Id.) Plaintiff alleges Defendant Thalken

removed excessive gum tissue and improperly stitched his gums, which caused “additional

discomfort, pain and unattracted [sic] healing.” (Id.) Plaintiff alleges Defendant Thalken

“suggested [Plaintiff] get reconstructive surgery in the future to repair the damage he had just

done.” (Id.) Plaintiff also alleges Defendant Thalken failed to give him adequate post-surgical

care, including pain medication, replacement gauze, and a “sick lay-in slip” to excuse him from

work or class. (Id.) 

In Claims Two and Three, Plaintiff alleges he “approached” Defendant Phillips, a nurse

practitioner, on September 22, 2010, to request “help with the pain, some fresh replacement

gauge [sic] and a medical lay-in slip.” (Id. at 5.) Plaintiff alleges Defendant Phillips told him he

would have to “put in a kite” to get a medical appointment. (Id.) Three days later, Plaintiff

“declared an emergency in order to get some medical attention.” (Id.) He was seen by a nurse

assistant who examined him and then “left to consult with” Defendants Phillip and Wormer, who

“came and examine[d] [him] in 10 seconds and denied everything I had requested.” (Id.) 

Plaintiff states Defendants Phillip and Wormer “both agreed that everything was fine.” (Id. at 6.) 

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Plaintiff seeks compensatory, punitive, and “moriatory” damages, as well as injunctive

relief in the form of reconstructive surgery and dentures. (Id. at 8.)

LEGAL STANDARDS

A. Pro Se Plaintiff

Plaintiff is proceeding 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); see also

Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding allegations of a pro se complaint “to less

stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s

“conclusory allegations without supporting factual averments are insufficient to state a claim

upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)

(citations omitted). 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) (a 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”).

B. Lack of Subject Matter Jurisdiction

Fed. R. Civ. P. 12(b)(1) empowers a court to dismiss a complaint for lack of subject

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment

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on the merits of a plaintiff’s case. Rather, it calls for a determination that the court lacks

authority to adjudicate the matter, attacking the existence of jurisdiction rather than the

allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)

(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction

when specifically authorized to do so). The burden of establishing subject matter jurisdiction is

on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th

Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings

in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The

dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.

2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that

dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice

is a disposition on the merits which a court lacking jurisdiction may not render).

A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the

complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v.

Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however,

the Court may consider matters outside the pleadings without transforming the motion into one

for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a

party challenges the facts upon which subject matter jurisdiction depends, a district court may

not presume the truthfulness of the complaint’s “factual allegations . . . [and] has wide discretion

to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to

resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.

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C. Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)

(2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that

the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally

sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d

1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual

allegations are true and construes them in the light most favorable to the plaintiff.” Hall v.

Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the

plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. 

First, the court identifies “the allegations in the complaint that are not entitled to the assumption

of truth,” that is, those allegations which are legal conclusion, bare assertions, or merely

conclusory. Id. at 68-81. Second, the Court considers the factual allegations “to determine if

they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible

claim for relief, such claim survives the motion to dismiss. Id. at 678.

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The Complaint does not state whether the plaintiff is suing the defendants in their

individual capacities, official capacities, or both. 

6

Notwithstanding, the court need not accept conclusory allegations without supporting

factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.

1998). “[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 

Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’ Nor does the complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).

ANALYSIS

A. Eleventh Amendment Immunity

The defendants assert that the claims against them in their official capacities must be

dismissed based on Eleventh Amendment immunity.1

 (Phillip’s Mot. at 3.) The Eleventh

Amendment to the United States Constitution states: “The Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI. It has been interpreted to bar a suit by a citizen against the

citizen’s own state in federal court. Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). Suits

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against state officials in their official capacity should be treated as suits against the state. Hafer

v. Melo, 502 U.S. 21, 25 (1991). This is because a suit against a state official in his or her

official capacity is a suit against the official’s office and therefore is no different from a suit

against the state itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The

Eleventh Amendment thus shields state officials, acting in their official capacities, from claims

for monetary relief. See Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007). Moreover, a

§ 1983 action may only be brought against a person. See 42 U.S.C. § 1983. Neither states nor

state officers sued in their official capacity for monetary damages are persons within the

meaning of § 1983. Will, 491 U.S. at 70-71. 

Plaintiff’s claims for monetary relief against the defendants in their official capacities

constitute claims against the Colorado Department of Corrections. See Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989) (“a suit against a state official in his or her official capacity

is not a suit against the official but rather is a suit against the official’s office”). Therefore,

Plaintiff’s official-capacity claims for monetary relief against the defendants are barred by the

Eleventh Amendment and should be dismissed for lack of subject matter jurisdiction. See id.;

Bennett, 17 F.3d at 1267. 

However, Plaintiff also seeks injunctive relief. Official capacity defendants are persons

for § 1983 purposes. Will, 491 U.S. at 71, n.10 (“Of course a state official in his or her official

capacity, when sued for injunctive relief, would be a person under § 1983 because

‘official-capacity actions for prospective relief are not treated as actions against the State.” ’)

(quoting Kentucky v. Graham, 473 U.S. 159, 167, n.14 (1985)). Likewise, injunctive relief

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claims against official capacity defendants seeking to end constitutional violations are not barred

by the Eleventh Amendment. See Green v. Mansour, 474 U.S. 64, 68; Ex parte Young, 209 U.S.

123, 155–156 (1908). Thus, to the extent Plaintiff seeks injunctive relief against the defendants

in their official capacities, those claims survive if Plaintiff has stated viable claims. 

B. Eighth Amendment Claims

The defendants also move to dismiss Plaintiff’s Eighth Amendment claims for failure to

state a claim. A “deliberate indifference” claim involves both an objective and a subjective

component. Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). To satisfy the objective

prong, a prisoner must demonstrate that his medical need is “objectively, sufficiently serious.” 

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation and quotation marks omitted). 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 lay person would easily recognize the necessity

for a doctor’s attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (citation

omitted). 

To satisfy the subjective component, a prisoner must demonstrate that prison officials

acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834. The officials must

“know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. That is, “the

official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.” Id. Thus, deliberate

indifference entails “more than mere negligence,” although it is not necessary that the acts or

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omissions be taken “for the very purpose of causing harm or with knowledge that harm will

result. Id. at 835.

1. Defendant Thalken

To the extent Plaintiff alleges Defendant Thalken improperly sedated him or improperly

performed the dental surgery, his allegation fails to state an Eighth Amendment claim. “A

negligent failure to provide adequate medical care, even one constituting medical malpractice,

does not give rise to a constitutional violation.” Perkins v. Kansas Dep’t of Corrs., 165 F.3d

803, 811 (10th Cir. 1999). Allegations of negligence are not cognizable in a § 1983 claim.

Daniels v. Williams, 474 U.S. 327, 328 (1986). Deliberate indifference requires a higher degree

of fault than negligence or even gross negligence. Berry v. City of Muskogee, 900 F.2d 1489,

1495–96 (10th Cir.1990).

To the extent Plaintiff alleges Defendant Thalken failed to give him adequate postsurgical care, including pain medication, replacement gauze, and a “sick lay-in slip” to excuse

him from work or class (Am. Compl. at 4), Plaintiff also has failed to state a claim for deliberate

indifference. “[I]in the medical context, an inadvertent failure to provide adequate medical care

cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to

the conscience of mankind” so as to fall afoul of the Eighth Amendment. Estelle v. Gamble, 429

U.S. 97, 104 (1976) (quotations omitted). Moreover, delayed “medical care only constitutes an

Eight Amendment violation where the plaintiff can show that the delay resulted in substantial

harm.” Sealock, 218 F.3d at 1210. 

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Here, Plaintiff fails to allege that Defendant Thalken acted deliberately to inflict pain on

Plaintiff unnecessarily or wantonly or that he disregarded a substantial risk of serious harm to

Plaintiff. There also is no allegation that Plaintiff saw Defendant Thalken after completion of

the dental surgery or that Defendant Thalken was aware of Plaintiff’s alleged pain. Moreover, to

the extent Plaintiff alleges Defendant Thalken failed to give him pain medication, replacement

gauze, or an excuse from work and class, he has failed to allege any harm that came from those

failures. Rather, Plaintiff alleges any harm caused by Defendant Thalken was due to the alleged

“botched” surgery, which, as stated above, is not cognizable as an Eighth Amendment claim. 

Finally, to the extent Plantiff disagrees with Defendant Thalken’s course of treatment, an

inmate’s difference of opinion concerning the medical treatment he received does generally

support a claim for cruel and unusual punishment. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.

1993). 

The court finds that Plaintiff has failed to state a claim upon which relief can be granted

against Defendant Thalken, and Claim One against Defendant Thalken is properly dismissed. 

2. Defendants Phillips and Wormer

With regard to Plaintiff’s allegation that Defendant Phillips told Plaintiff he would have

to “put in a kite” to get a medical appointment (Am. Compl. at 5), Plaintiff has failed to state a

claim for deliberate indifference. See, e.g., Inman v. Stock, 248 F. App’x 892, 895 (10th Cir.

2007) (finding no Eighth Amendment violation when a prisoner who “slipped on an icy sidewalk

and injured his hand and knee . . . sought immediate medical assistance and was told to submit a

‘kite’ and wait to be seen”).

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Plaintiff’s allegations that Defendants Phillip and Wormer examined him three days later

and denied him pain medication and supplies because they determined everything was fine (Am.

Compl. at 5–6) also does not state a claim for deliberate indifference. First, temporary denials of

medications cannot serve as the basis for a deliberate indifference claim. Lane v. Klinger, 25 F.

App’x 781, 783–84 (10th Cir. 2001) (finding no Eighth Amendment claim where pain

medication denied for three hours); Jackson v. Simmons, No. CIV. A. 99–3363–KHV, 2001 WL

951008, at *5 (D. Kan. July 26, 2001) (finding no Eighth Amendment claim where pain

medication denied for one day). Second, Plaintiff seems to disagree with the opinions of the

defendants, yet “a mere difference of opinion between the prison’s medical staff and the inmate

as to the diagnosis or treatment which the inmate receives does not support a claim of cruel and

unusual punishment.” Ramos, 639 F.2d at 575. Third, again, Plaintiff has failed to allege any

harm that came from the denial of pain medication, gauze, antibiotics, and an excuse from work

and class. To the contrary, Plaintiff concedes that he “returned to [his] unit and borrowed some

gauge [sic] and 500 mg pain medicine from other prisoners,” and then “had the unit manager call

[his] computer teacher . . . excusing [him] from class.” 

The court finds that Plaintiff also has failed to state a claim upon which relief can be

granted against Defendants Phillips and Wormer, and Claim One and Two properly dismissed. 

C. Qualified Immunity

Defendants argue they are entitled to qualified immunity in their individual capacities.

Qualified immunity protects government officials from litigation when they are sued in their

individual capacities. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814–18 (1982).

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“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 818. 

A government official is entitled to qualified immunity from liability for civil damages

when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or

constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would

have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818

(stating that “government officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known”); see also

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity

determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any

order, no further analysis need be undertaken and qualified immunity is appropriate). The

Supreme Court has stated that “[f]or executive officials in general . . . our cases make plain that

qualified immunity represents the norm.” Id. at 807. Thus, a government official is entitled to

qualified immunity in “[a]ll but the most exceptional cases.” Harris v. Bd. of Educ. of the City of

Atlanta, 105 F.3d 591, 595 (11th Cir. 1997).

As the court has concluded that Plaintiff fails to state a cognizable Eighth Amendment

violation against any of the named defendants, the defendants are entitled to qualified immunity.

WHEREFORE, for the foregoing reasons, the court respectfully

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RECOMMENDS that “Defendants Phillip and Dr. Wormer’s Motion to Dismiss” (Doc.

No. 32) and “Defendant Dr. Thalken’s Motion to Dismiss” (Doc. No. 63) be GRANTED. The

court further 

RECOMMENDS that the District Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that

any appeal from this recommendation would not be taken in good faith and therefore in forma

pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369

U.S. 438 (1962). Thereafter, if Plaintiff files a notice of appeal he also must pay the full $455.00

appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days of the court’s final order in accordance with Fed.

R. App. P. 24.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of Colorado. 

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A

general objection that does not put the district court on notice of the basis for the objection will

not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. One Parcel of Real Prop.

Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to

make timely objections may bar de novo review by the district judge of the magistrate judge’s

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proposed findings and recommendations and will result in a waiver of the right to appeal from a

judgment of the district court based on the proposed findings and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or for appellate

review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal

the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

Dated this 8th day of February, 2013.

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