1

Be advised that all parties shall have fourteen (14) 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 (14) days after

being served with a copy may bar the aggrieved party from appealing the factual findings of the

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02554-REB-MEH

RONALD M. COX,

Plaintiff,

v.

NURSE DOUG OF (DRDC) (CDOC),

(DRDC) WARDEN ZAVISLAN (CDOC), and

(DRDC) CAPTAIN REAUX (CDOC),

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendants’ Motion to Dismiss Second Amended Prisoner Complaint

(Doc. 14) [filed May 21, 2012; docket #27]. The motion is referred to this Court for

recommendation. (Docket #28.) The matter is fully briefed and oral argument would not materially

assist the Court in its adjudication of the motion. For the following reasons and based on the entire

record herein, the Court RECOMMENDS Defendants’ motion be GRANTED IN PART and

DENIED IN PART.

1

Case 1:11-cv-02554-RM-MEH Document 40 Filed 07/30/12 USDC Colorado Page 1 of 24
Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140,

155 (1985); In re Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).

2

BACKGROUND

Plaintiff initiated this lawsuit pro se on September 29, 2011. (Docket #1.) His motion for

leave to proceed in forma pauperis was granted on October 5, 2011. (Docket #3.) Although

Plaintiff was initially incarcerated at Limon Correctional Facility, he is now housed at the Colorado

Territorial Correctional Facility in Cañon City where he remains in the custody of the Colorado

Department of Corrections (“CDOC”). (See dockets ##1 at 2; 9 at 2; 14 at 2; 36 at 3.) 

I. Statement of Facts

The following are factual allegations (as opposed to legal conclusions, bare assertions or

merely conclusory allegations) made by the Plaintiff (or construed liberally) in the operative

complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(1) pursuant to Stuart v.

Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) and for analysis under Fed. R.

Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must limit its

review to the four corners of the complaint, but may also consider documents attached to the

complaint as exhibits, Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), as well as

unattached documents which are referred to in the complaint and central to the plaintiff’s claim, so

long as the authenticity of such documents is undisputed. Jacobsen v. Deseret Book Co., 287 F.3d

936, 941 (10th Cir. 2002).

Plaintiff’s claims arise from an alleged denial of medical treatment by prison officials after

he swallowed two razors in cookies that were served to Plaintiff. (Docket #14 at 5.) The incident

occurred at dinner on May 28, 2011. (Id.) Shortly thereafter, Plaintiff noticed blood coming from

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2

Plaintiff’s alleged drycell conditions consisted of, among others, a mace-infested mattress

that Plaintiff did not have access to during the day; defecating in full restraints in front of

correctional officers; an ankle chain; no running water; no shower; no utensils; and no covers.

3

the inside of his mouth and that it “was all cut up.” (Id.) Nurse Doug examined Plaintiff’s mouth,

advised Plaintiff to bite his jaw in order to stop the bleeding and stated that he would be back in

twenty minutes to check the status of Plaintiff’s injuries. (Id. at 6.) However, Nurse Doug never

returned to examine the development of Plaintiff’s injuries. (Id.) No medical staff attended to

Plaintiff that night, despite his continued requests for medical personnel and despite reassurance

from a prison officer that medical personnel was on its way. (Id.) That night Plaintiff suffered

“severe stomach pain.” (Id.) 

The next afternoon, Plaintiff was taken to medical whereby he was reexamined by Nurse

Doug, who told Plaintiff that he did not believe that Plaintiff had swallowed razors. (Id.)

Nevertheless, Nurse Doug called the doctor and the Plaintiff was sent to Denver Health Medical

Center. (Id.) X-rays at the hospital revealed that Plaintiff had ingested two razor blades. (Id. at 7.)

Hospital doctors instructed prison medical staff that if the razors did not exit Plaintiff’s system after

“3 bowels or 72 hours,” he was to be returned back to the hospital “immediately” for surgery. (Id.

at 7-8.) 

During the next three days, Plaintiff was held in drycell where he suffered from

“uncomfortable” and “humiliating” conditions, which “prolonged [his] suffering from razors in [his]

system.”2

 (Id. at 8.) During Plaintiff’s three-day drycell period, he was x-rayed daily. (Id. at 9.)

The x-rays revealed that one razor blade had successfully passed through Plaintiff’s system without

any further injury; however, one still remained. (Id.) After three days in drycell, prison officials

released Plaintiff back into the general prison population instead of returning him to the hospital as

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the doctors had instructed. (Id.)

II. Procedural History

 Upon initial review of Plaintiff’s original complaint, Magistrate Judge Boland directed

Plaintiff to file an amended complaint within thirty days of the order. (Docket #6.) Plaintiff filed

an “amended complaint” on December 22, 2011. (Docket #9.) Upon review of Plaintiff’s amended

complaint, Magistrate Judge Boland directed Plaintiff to file a second amended complaint within

thirty days of the order. (Docket #11.) At Plaintiff’s request, Magistrate Judge Boland extended

the deadline through and including March 30, 2012. (Docket #13.) Plaintiff filed a Second

Amended Complaint on February 28, 2012, which is the operative pleading in this action. (Docket

#14.) 

Plaintiff’s complaint asserts three causes of action. In Claim 1, Plaintiff alleges that

Defendants intentionally denied Plaintiff medical treatment in violation of the Eighth Amendment.

This claim has been divided into two sub-claims by the Court. (See docket #18 at 4.) In Claim

(1)(a), Plaintiff contends that he was denied due process of the law and subjected to cruel and

unusual punishment when he was served a meal tray that contained two razor blades. (Id.) In Claim

(1)(b), Plaintiff asserts that he was subjected to cruel and unusual punishment by Nurse Doug when

he was denied timely medical treatment both on the night he swallowed the razor blades and the

following afternoon. (Id.) In Claim 2, Plaintiff argues that Captain Reaux, Warden Zavislan, and

DOC Executive Director Tom Clements inflicted cruel and unusual punishment on Plaintiff in

violation of the Eighth Amendment by denying him medical treatment in response to his inadvertent

ingestion of razors found in the prison food. (Docket #14 at 8-9.) In Claim 3, Plaintiff argues that

Defendants conspired to deprive Plaintiff of his “federally guaranteed rights.” (Id. at 10.) 

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On March 20, 2012 during initial review, Judge Babcock issued an order dismissing Claims

(1)(a) and 3 as legally frivolous and dismissing Correctional Officer Pastilletti, Lieutenant Carigan,

Captain Zerbo, and DOC Executive Director Tom Clements as Defendants. (Docket #18.)

Therefore, the only remaining claims in this case are Claim (1)(b) against Nurse Doug and Claim

2 against Captain Reaux and Warden Zavislan. 

The remaining Defendants responded to Plaintiff’s Second Amended Complaint by filing

the present motion to dismiss. (Docket #27.) Defendants argue that: (1) Plaintiff’s claims against

them in their official capacities are barred by the Eleventh Amendment; (2) no private right of action

exists for any claims purportedly brought under 42 U.S.C. § 1997a; (3) Plaintiff fails to state a

cognizable Eighth Amendment claim; and (4) Defendants are entitled to qualified immunity. 

STANDARDS OF REVIEW

I. Treatment of a Pro Se Plaintiff’s Complaint

A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not

supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory

on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations

and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably

read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor

syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the

proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see

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also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188,

1197 (10th Cir. 1989)). 

II. Dismissal Under Fed. R. Civ. P. 12(b)(1)

Rule 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 on the

merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the

matter. See Castaneda v. I.N.S., 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). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which

it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906,

909 (10th Cir. 1974) (emphasis in original). 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). The burden of establishing

subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909.

Accordingly, Plaintiff in this case bears the burden of establishing that this Court has jurisdiction

to hear his claims.

III. Dismissal under Fed. R. Civ. P. 12(b)(6)

“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)). The factual allegations

in the complaint “must be enough to raise a right to relief above the speculative level.” Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). Plausibility, in the

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context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

The Rule 12(b)(6) 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 conclusions, bare assertions, or merely conclusory. Id. at 680. 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 680. However, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. at 678. 

The complaint must provide “more than labels and conclusions” or merely “a formulaic

recitation of the elements of a cause of action,” so that “courts ‘are not bound to accept as true a

legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v.

Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct,” the complaint has made an

allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and

citation omitted).

ANALYSIS

The Court will begin its analysis by addressing the immunity defenses, determining first

whether Defendants in their official capacities are entitled to sovereign immunity, and second,

whether Defendants in their individual capacities are entitled to qualified immunity. Within the

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qualified immunity inquiry, the Court will determine whether Plaintiff states cognizable claims

under 42 U.S.C. § 1997a and the Eighth Amendment. 

I. Sovereign Immunity

 Plaintiff brings this action against the Defendants in their individual and official capacities

for prospective injunctive, monetary and declaratory relief. Defendants argue that Plaintiff’s official

capacity claims are barred by the Eleventh Amendment. 

 The Court agrees that Defendants are not subject to suit in their official capacity. Claims

against state officials in their official capacities are essentially claims against the state entity.

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits, in contrast, generally

represent only another way of pleading an action against an entity of which an officer is an agent.”)

(citation and quotations omitted). It is well-established that “the Eleventh Amendment precludes

a federal court from assessing damages against state officials sued in their official capacities because

such suits are in essence suits against the state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th

Cir.1994). Absent an unmistakable waiver by a state of its Eleventh Amendment immunity, or an

unmistakable abrogation of such immunity by Congress, the Eleventh Amendment provides absolute

immunity from suit in federal courts for states and their agencies. Blatchford v. Native Vill. of

Noatak & Circle Vill., 501 U.S. 775, 785-86 (1991). Section 1983 did not abrogate the Eleventh

Amendment, nor does it provide a jurisdictional basis for suit against a state official acting in his or

her official capacity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). 

The Supreme Court has recognized an exception to the Eleventh Amendment for such

actions where a plaintiff is seeking prospective enforcement of his or her federal rights. See Ex

parte Young, 209 U.S. 123, 159-60 (1908). But Young makes it clear that this exception “may not

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be used to obtain a declaration that a state officer has violated a plaintiff’s federal rights in the past”

or as a means for seeking money damages. Buchwald v. Univ. of New Mexico Sch. of Med., 159

F.3d 487, 495 (10th Cir. 1998) (citations and quotations omitted).

Here, Plaintiff seeks monetary damages, a judgment “declaring the facts [sic] of defendants

. . . in fact violated the right of [Plaintiff] under the 8th and 14th Amendments,” and an award of

“general inju[n]ctive relief of a pardon to immediately release Plaintiff ... and to vacate sentence and

parole period.” (Docket #14 at 15-16.) As set forth above, Plaintiff’s requests for monetary

damages and for a declaration that Defendants violated his rights in the past do not fall under the

Young exception to Eleventh Amendment immunity. Further, Plaintiff’s request for injunctive relief,

while prospective, is an improper request in a Section 1983 case. See Nelson v. Campbell, 541 U.S.

637, 643 (2004) (describing claims seeking injunctive relief challenging the fact of conviction or

the duration of a sentence as “core” habeas corpus claims); see also United States v. Furman, 112

F.3d 435, 438 (10th Cir. 1997) (noting that claims “go[ng] to the execution of a sentence ... should

be brought against defendant’s custodian under 28 U.S.C. § 2241.”). 

Finding no exception pursuant to Young, the Court concludes that Plaintiff’s claims against

Defendants in their official capacities in this case are barred by the Eleventh Amendment.

Therefore, the Court respectfully recommends that the District Court grant Defendants’ motion in

this regard and dismiss Plaintiff’s claims against Defendants in their official capacities.

II. Qualified Immunity 

Defendants assert that they are entitled to qualified immunity for claims against them in their

individual capacities. Qualified immunity protects from litigation a public official whose possible

violation of a plaintiff’s civil rights was not clearly a violation at the time of the official’s actions.

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See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face

the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal

quotations and citations omitted). The privilege is an immunity from suit rather than a mere defense

to liability. Id. When a defendant asserts the defense of qualified immunity, the burden shifts to the

plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.

2009). “The plaintiff must demonstrate on the facts alleged both that the defendant violated his

constitutional or statutory rights, and that the right was clearly established at the time of the alleged

unlawful activity.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)). 

The Supreme Court has discarded a review process that required courts to examine the

elements of qualified immunity sequentially, first considering whether a right had been violated, and

then second - if the court concluded a right had been violated - whether that right was clearly

established at the time of the alleged violation. Pearson, 555 U.S. at 232-44. Pearson retired this

process, instead affording courts the discretion to decide “which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Id. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.

2009).

In this case, the Court will begin by analyzing each of Plaintiff’s remaining claims and

determining whether Plaintiff has plausibly established a violation of his rights; if so, the Court will

proceed to determine whether Plaintiff’s rights were clearly established at the time of the violation.

A. 42 U.S.C. § 1997a 

Defendants argue that 42 U.S.C. § 1997a does not provide a private right of action for

Plaintiff’s claims. To the extent that either of the remaining claims in the Second Amended

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Complaint may be construed as “claims” pursuant to § 1997a (see docket #14 at 9, 12-14), the Court

agrees.

Specifically, Plaintiff alleges that Captain Reaux acted in “violation of” 42 U.S.C. § 1997a

when she subjected Plaintiff to “egregious and flagrant conditions” in drycell. (See docket #14 at

12.) Plaintiff further alleges that Warden Zavislan violated 42 U.S.C. § 1997a “by not following

through with doctor’s order [sic] to return [him] to the clinic.” (Id.) 

The statute itself affords the Attorney General the capability to bring suit against any official

or employee on behalf of the State who is subjecting persons residing in an institution to egregious

or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured

or protected by the Constitution or laws of the United States. 42 U.S.C. § 1997a(a) (1996). The

statute is part of the Civil Rights of Institutionalized Persons Act (“CRIPA”). See Callahan v. Sw.

Med. Ctr. of Lawton, 178 F. App’x 837, 840 (10th Cir. 2006). According to the CRIPA, the Plaintiff

does not have a private right of action. Id. (citing 42 U.S.C. § 1997a(c) (1996)).

 Because no private right of action exists for any claims brought under 42 U.S.C. § 1997a,

the Plaintiff wrongly asserts such claim against the Defendants. Therefore, the Court recommends

that the District Court grant Defendants’ motion regarding Plaintiff’s § 1997a claims, to the extent

they are construed as such, and dismiss them accordingly.

B. Eighth Amendment Claims

Notably, in addition to his Eighth Amendment claims, the Plaintiff also asserts claims under

the Fourteenth Amendment for violations of his rights to due process against all three Defendants

in connection with the alleged denial of adequate medical care. (Docket #14 at 6, 8-9.) However,

as the Court previously ordered in its motion to dismiss in part, the Plaintiff’s due process rights in

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this context are coextensive with his rights under the Eighth Amendment; therefore, the Court will

address these claims solely through its Eighth Amendment inquiry. (Docket #18 at 5); see also

Whitley v. Albers, 475 U.S. 312, 327 (1986)) (“[I]n these circumstances the Due Process Clause

affords respondent no greater protection than does the Cruel and Unusual Punishments Clause”).

In Claim (1)(b), Plaintiff alleges that he was subjected to cruel and unusual punishment by

Nurse Doug when he was denied timely medical treatment both on the night he swallowed the razor

blades and the following afternoon. (See docket #14 at 5-6.) In Claim 2, Plaintiff alleges that he

was subjected to cruel and unusual punishment by Captain Reaux and Warden Zavislan based on

the drycell conditions he endured for three days and the Defendants’ failure to return him to the

hospital upon his release from drycell. (See id. at 8-9.) For purposes of clarity and organization,

Claim 2 will be divided into two sub-claims: Plaintiff’s drycell conditions; and Defendants’ alleged

deliberate indifference to Plaintiff’s prescribed medical treatment.

Under the Eighth Amendment, prisoners are constitutionally entitled to “humane conditions

of confinement guided by ‘contemporary standards of decency.’” Penrod v. Zavaras, 94 F.3d 1399,

1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prisoners state a claim

of cruel and unusual punishment under the Eighth Amendment by alleging prison officials

demonstrated “deliberate indifference to a prisoner’s serious illness or injury,” or that prison

officials “have, with deliberate indifference,” involuntarily exposed a prisoner to conditions “that

pose an unreasonable risk of serious damage to [the inmate’s] future health.” Helling v. McKinney,

509 U.S. 25, 35 (1993); Estelle, 429 U.S. at 105. 

Plaintiff must meet both the objective and subjective components constituting the test for

Eighth Amendment deliberate indifference. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.

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2006). The objective component is met “if the harm suffered is ‘sufficiently serious’ to implicate

the Cruel and Unusual Punishment Clause.” Id. (quoting Kikumura v. Osagie, 461 F.3d 1269, 1291

(10th Cir. 2006)). “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.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th

Cir. 2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). “Moreover, a ‘delay in

medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay

resulted in substantial harm.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Oxendine,

241 F.3d at 1276). The substantial harm requirement may be satisfied by lifelong handicap,

permanent loss, or considerable pain. Id. (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.

2001)) (internal quotations omitted). A delay in medical treatment that is unintentional or

unavoidable, even though it may result in the inmate suffering additional harm, is not actionable.

See, e.g., Estelle, 429 U.S. at 104-05 (“indifference is manifested . . . by prison guards in

intentionally denying or delaying access to medical care”) (emphasis in original).

The subjective component is met if the plaintiff demonstrates that a defendant “knew he

faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to

abate it.” Callahan, 471 F.3d at 1159 (quoting Kikumura, 461 F.3d at 1293). The subjective

component requires an “inquiry into a prison official’s state of mind when it is claimed that the

official has inflicted cruel and unusual punishment.” Kikumura, 461 F.3d at 1293 (quoting Farmer

v. Brennan, 511 U.S. 825, 838 (1994)). To prove a claim of deliberate indifference predicated on

the delay in providing medical care, an inmate must show: (i) that he suffered from a serious medical

need; (ii) that medical care to address that need was unnecessarily delayed; (iii) that the delay

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manifested the defendant’s subjective disregard for the inmate’s needs; and (iv) that the delay caused

the inmate to suffer substantial harm, whether in the form of significant pain or permanent physical

injury. Grassi v. Corr. Corp. of Am., No. 07-cv-00944-MSK-KMT, 2008 WL 5172154, at *5 (D.

Colo. Dec. 9, 2008) (citing Estelle, 429 U.S. at 104-05).

1. Claim (1)(b) - Denied Medical Treatment

Plaintiff alleges that Nurse Doug denied him medical treatment after he ingested two razor

blades when eating dinner, causing him a “serious bodily injury.” (Docket #14 at 5.) Beginning

with an analysis of the objective component of the claim, on its face, the consumption of razor

blades appears to be a serious medical need. However, the proper Eighth Amendment inquiry

analyzes the harm suffered that stems from the ingestion, not the mere fact that Plaintiff consumed

two razor blades. Callahan, 471 F.3d at 1159. While Plaintiff alleges he suffered “severe stomach

pain” the night he ingested the blades, his Second Amended Complaint does not allege any further

injuries stemming from his consumption of the razor blades. (Docket #14 at 6.) Plaintiff also fails

to allege how Nurse Doug’s medical treatment of Plaintiff “resulted in substantial harm.” Mata, 427

F.3d at 751. 

At the same time, however, x-rays of Plaintiff’s stomach taken at the hospital allegedly

revealed that he had ingested two razor blades. This type of injury would be one “that is so obvious

even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d

at 1209. According to the allegations, at least one medical doctor at the hospital Plaintiff visited

opined that consumption of razor blades, if left untreated, could potentially result in more serious

injuries. (Docket #14 at 8.) The hospital doctor instructed prison medical staff to return Plaintiff to

the hospital “immediately” after the 72-hour drycell period if Plaintiff had any remaining razor

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blades in his system. (Id.) Such instruction implies that a razor blade in the Plaintiff’s system, while

not necessarily requiring immediate medical attention, could prove to be a “sufficiently serious”

medical need over the long run. Medical needs that become sufficiently serious over the long run

have met the objective component in Eighth Amendment analysis. See, e.g., Harrison v. Barkley,

219 F.3d 132, 137 (2nd Cir. 2000) (“[B]ecause a tooth cavity will degenerate with increasingly

serious implications if neglected over sufficient time, it presents a ‘serious medical need.’”).

Therefore, the Court finds that Plaintiff has alleged a sufficiently serious medical need to meet the

objective component of his Claim (1)(b) for violation of the Eighth Amendment against Nurse Doug.

With respect to the subjective component, Plaintiff must allege that Nurse Doug acted with

deliberate indifference. As the Tenth Circuit established in Johnson v. Stephan, 6 F.3d 691, 692

(10th Cir 1993), a difference of opinion between a prisoner and prison medical staff regarding the

treatment or diagnosis of a medical condition does not constitute deliberate indifference. In the

context of § 1983 suits under the Eighth Amendment, a defendant is not required to show that he

made a correct or even prudent decision in diagnosing or treating a plaintiff’s medical condition.

Braxton v. Wyandotte Cnty. Sheriff’s Dep’t, 206 F. App’x 791, 793 (10th Cir. 2006) (“inadvertent

failure to provide adequate medical care or negligence in diagnosing or treating a medical condition

does not violate the Eighth Amendment.”) “So long as a medical professional provides a level of

care consistent with the symptoms presented by the inmate, absent evidence of actual knowledge

or recklessness, the requisite state of mind cannot be met.” Self v. Crum, 439 F.3d 1227, 1233 (10th

Cir. 2006).

In Self, the Tenth Circuit held that the “subjective component is not satisfied, absent an

extraordinary degree of neglect, where a doctor merely exercises his considered medical judgment.”

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Id. at 1232. “[D]ecisions as whether to consult a specialist or undertake additional medical testing”

have traditionally fallen into this category. Id. Unless the need for additional medical treatment or

a referral is obvious, a defendant’s missed diagnosis or delayed referral is not actionable. Id.

“Obviousness” may arise in cases where: (1) a medical professional is aware of his inability to

provide adequate treatment but delays or refuses to provide a referral; (2) a medical professional

fails to treat a medical condition so obvious that even a layman would recognize it; or (3) a medical

professional completely denies care despite recognizable symptoms which potentially create a

medical emergency. Id.

In this case, Plaintiff alleges that Nurse Doug’s delay in medical treatment constituted

“callous indifference” and subjected Plaintiff to cruel and unusual punishment. (Docket #14 at 6.)

According to the allegations, however, Nurse Doug was one of the first prison medical staff to

examine the Plaintiff after he consumed the razor blades. (Id.) Nurse Doug also examined Plaintiff

before he was taken to the hospital where it was confirmed that Plaintiff had ingested razor blades.

(Id.) As such, Nurse Doug investigated Plaintiff’s injuries before Defendants knew the extent of

Plaintiff’s injuries and medical needs. After the second examination, apparently due to uncertainty

as to the cause of Plaintiff’s injuries, Nurse Doug called a doctor and sent Plaintiff to the hospital.

(Id.) Thus, it is not the case that Nurse Doug simply acted indifferently. 

While Plaintiff concedes that Nurse Doug provided him with some degree of medical

attention, he argues that Nurse Doug should have conducted a more thorough examination and

investigated Plaintiff’s injuries at an earlier time. As noted above, decisions of this nature

traditionally fall within the scope of a physician’s medical judgment and are, therefore, not

actionable under the Eighth Amendment absent a showing of obviousness. See Self, 439 F.3d at

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1232. The Plaintiff’s allegations do not follow any of the examples suggested by the Tenth Circuit

in Self. 

 Based on the facts alleged by Plaintiff, Nurse Doug clearly provided medical treatment for

Plaintiff’s injuries. (See docket #14 at 5-6.) The allegations demonstrate that Nurse Doug’s

decision not to continue to examine Plaintiff after he had already completed two examinations was

within his discretion as a medical provider, as it was not “obvious” at the time of Plaintiff’s

treatment that further action was necessary. As such, Plaintiff has not met the subjective component

of his Eighth Amendment claim. Therefore, the Court recommends the District Court find that

Nurse Doug is entitled to qualified immunity with respect to Plaintiff’s Eighth Amendment claim,

and that the District Court grant Defendants’ motion to dismiss Claim (1)(b) accordingly. 

2. Claim (2)(a) - Drycell Conditions

Plaintiff alleges in Claim 2 that Captain Reaux and Warden Zavislan subjected him to cruel

and unusual punishment. Specifically, they “deliberately put [his] life and health in jeoperdy [sic]

by placing [him] back in a holding cell with razors still in [his] system.” (Id. at 8.) Conditions of

confinement fall within the Eighth Amendment because they are part of the penalty that criminal

offenders pay for their offenses. Penrod, 94 F.3d at 1405. “The Eighth Amendment ‘does not

mandate comfortable prisons,’ and conditions imposed may be ‘restrictive and even harsh.’” Barney

v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (quoting Rhodes v. Chapman, 452 U.S. 337, 347,

349 (1981)). An important factor in determining whether conditions of confinement meet

constitutional standards is the length of the incarceration. Id. 

A prison official may be held liable for Eighth Amendment violations in denying humane

conditions of confinement only if the official knows of and disregards an excessive risk to inmate

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health and safety. Id. at 1310 (quoting Farmer, 511 U.S. at 837). It is not enough to establish that

the official should have known of the risk of harm. Id. In order to hold prison officials liable for

violating an inmate’s right to humane conditions of confinement, two requirements must be met.

Barney, 143 F.3d at 1310. First, the deprivation alleged must be objectively sufficiently serious,

depriving the inmate of the minimal civilized measures of life’s necessities. Id. (quoting Wilson v.

Seiter, 501 U.S. 294, 298 (1991)) (internal quotations omitted). Second, the official must have a

sufficiently culpable state of mind, which in this context means the official must exhibit deliberate

indifference to a substantial risk of serious harm to an inmate. Id. (quoting Farmer, 511 U.S. at

834).

Here, Plaintiff fails to allege how the drycell conditions he faced were “objectively

sufficiently serious.” Barney, 143 F.3d at 1310. Instead, Plaintiff plainly alleges that being held in

drycell simply “prolonged” his suffering while razors remained in his system. (Docket #14 at 8.)

Plaintiff alleges he was kept in drycell for seventy-two hours and then promptly released at the end

of the ordered time period. (Id. at 9.) While the alleged conditions appear to be uncomfortable, they

were only temporary and a precautionary means by prison officials to make sure the razor blades

had left the Plaintiff’s system. (Id. at 8.) Courts have held that worse conditions over a longer

period of time than those alleged by the Plaintiff here do not constitute valid Eighth Amendment

claims. See, e.g., White v. Nix, 7 F.3d 120, 121 (8th Cir. 1993) (eleven-day stay in unsanitary cell

not unconstitutional because of relative brevity of stay and availability of cleaning supplies); Harris

v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir. 1988) (five-day stay in “filthy, roach-infested cell” not

unconstitutional). Therefore, the Court must conclude that Plaintiff has failed to allege the required

objective element of his Eighth Amendment claim against Defendants Reaux and Zavislan regarding

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his drycell conditions. However, even if the Plaintiff had met the objective component, the Plaintiff

fails to meet the subjective component of his drycell conditions claim. 

To meet the subjective requirement, Plaintiff must allege that Captain Reaux and Warden

Zavislan exhibited “deliberate indifference to a substantial risk of serious harm to [him].” Barney,

143 F.3d at 1310 (quoting Farmer, 511 U.S. at 834). Many courts have equated deliberate

indifference with recklessness. Farmer, 511 U.S. at 836 (citing LaMarca v. Turner, 995 F.2d 1526,

1535 (11th Cir. 1993); Manarite v. Springfield, 957 F.2d 953, 957 (1st Cir. 1992); Redman v. Cnty.

of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991)). In Farmer, the Supreme Court held that a

prison official cannot be found liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and disregards an excessive risk to inmate

health or safety; the official both must be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and must also draw the inference. Id. at 837.

Here, Plaintiff has failed to allege that Captain Reaux and Warden Zavislan knew of and

disregarded an “excessive risk” to Plaintiff’s health or safety when he was placed in drycell

temporarily for three days. The allegations indicate that the drycell mandate was part of Plaintiff’s

treatment in order to ensure that the razor blades Plaintiff ingested would pass through his system

safely. According to Plaintiff’s own allegations, the drycell placement was only in response to

Plaintiff having ingested the razor blades. (Docket #14 at 8.) Because of the extent of Plaintiff’s

injury, the drycell appears to be a proper and effective means to treat Plaintiff properly. According

to the allegations, at the time of Plaintiff’s drycell detention, the only injuries he alleges stemming

from eating the razor blades occurred over a week prior to the beginning of his drycell stay.

Consequently, the Plaintiff’s allegations do not demonstrate that Captain Reaux and Warden

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Zavislan acted recklessly in response to Plaintiff’s injury. As such, the Court finds that Plaintiff has

not sufficiently alleged the subjective requirement of his Eighth Amendment claim against Captain

Reaux and Warden Zavislan regarding the conditions he faced in drycell. Therefore, the Court

recommends the District Court find that Captain Reaux and Warden Zavislan are entitled to

qualified immunity with respect to Plaintiff’s Eighth Amendment claim regarding his drycell

conditions, and dismiss Plaintiff’s Claim (2)(a).

 3. Claim (2)(b) - Deliberate Indifference to Prescribed Medical Treatment

Plaintiff further asserts in Claim 2 that Captain Reaux and Warden Zavislan subjected him

to cruel and unusual punishment when they failed to return Plaintiff to the hospital after one razor

blade remained in his system. (Docket #14 at 8.) As previously noted, x-rays of Plaintiff’s stomach

were taken at the hospital revealing that he had ingested two razor blades. A doctor there ordered

that Plaintiff be returned to the hospital if the razor blades did not pass through the Plaintiff’s

system. Accordingly, Plaintiff’s injury constitutes a sufficiently serious medical need as “one that

has been diagnosed by a physician as mandating treatment.” Sealock, 218 F.3d at 1209. Thus, the

Court finds that Plaintiff has properly alleged a sufficiently serious medical need to meet the

objective component of Claim (2)(b) against Captain Reaux and Warden Zavislan.

With respect to the subjective component, Plaintiff must demonstrate that Captain Reaux

and Warden Zavislan acted with deliberate indifference to his serious medical need. See Farmer,

511 U.S. at 834. A prison official may be held liable when he acts with deliberate indifference “only

if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” Id. at 847. The official both must be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he must draw

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the inference. Id. at 837. The deliberate indifference standard “is manifested by prison doctors in

their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access

to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S.

at 104-05 (emphasis added). This conclusion does not mean, however, that every claim by a

prisoner that he has not received adequate medical treatment states a violation of the Eighth

Amendment. Id. at 105. An accident, although it may produce added anguish, is not on that basis

alone to be characterized as wanton infliction of unnecessary pain. Id.

Here, the allegations demonstrate that Captain Reaux and Warden Zavislan were aware that

Plaintiff had ingested two razor blades as hospital x-rays revealed. (Docket #14 at 8.) In addition,

the Defendants were cognizant of the fact that Plaintiff still had one razor blade remaining in his

system when he was released from drycell to the general prison population. (Id. at 9.) According

to the Second Amended Complaint, Plaintiff was “x-rayed every day including the morning of [his]

release from drycell,” which “revealed that [he] still had one remaining razor in [his] stomach.” (Id.)

When Plaintiff was originally examined at the hospital, doctors allegedly told prison medical staff

“that if razors do not exit Plaintiff’s system that he is to be returned back to the emergency room

immediately.” (Id. at 8.) While Plaintiff does not specify at what point he should have been

returned to the emergency room if the blades had not passed through his system, construing

Plaintiff’s complaint liberally, it would appear that hospital doctors prescribed his return

“immediately” upon completion of his three-day drycell stay. (Id.) Plaintiff alleges Captain Reaux

and Warden Zavislan were aware that Plaintiff faced a substantial risk of serious harm if the razor

remained in Plaintiff’s system, as the hospital doctors ordered Plaintiff back to the hospital

immediately if any razors remained in his system. (Id.) Captain Reaux and Warden Zavislan,

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therefore, allegedly knew of Plaintiff’s serious medical condition, and despite this knowledge, failed

to ensure that he received treatment. See Martinez v. Garden, 430 F.3d 1302, 1305 (10th Cir. 2005)

(concluding that prison medical staff’s knowledge of a plaintiff’s serious medical condition, coupled

with their failure to ensure plaintiff received medical treatment, could constitute deliberate

indifference within the context of the Eighth Amendment). 

Thus, the allegations demonstrate that Captain Reaux and Warden Zavislan disregarded a

“substantial risk of serious harm” to Plaintiff by failing to return him to the hospital upon completion

of his three-day drycell period as instructed by hospital doctors. See Farmer, 511 U.S. at 847.

Accordingly, the Court finds that Plaintiff has met the subjective component of his Eighth

Amendment claim against Captain Reaux and Warden Zavislan by Plaintiff’s allegations that they

failed to return him to the hospital with one razor blade remaining in his system upon the completion

of Plaintiff’s drycell stay. 

Further, the Court finds that Plaintiff’s Claim (2)(b) was clearly established at the time of

the incident. If a plaintiff establishes a violation of a constitutional or statutory right he must then

demonstrate that the right at issue was clearly established at the time of the defendant’s unlawful

conduct such that a reasonable person in defendant’s position would have known that his conduct

violated that right. See Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). “The relevant,

dispositive inquiry is whether it would be clear to a reasonable officer [in the defendant’s position]

that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202

(2001). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court

or Tenth Circuit decision on point, or the clearly established weight of authority from other courts

must have found the law to be as the plaintiff maintains.” Walker v. City of Orem, 451 F.3d 1139,

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1151 (10th Cir. 2006).

Here, the allegations are that the Defendants knew Plaintiff had a razor blade in his system

after the three-day drycell period and knew that the doctor had ordered Plaintiff returned to the

hospital if a razor remained in his system after the drycell period. It has been clearly established

since 1976 that a prison official’s failure to act in accordance with prescribed medical instructions

can give rise to an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

Thus, the Court recommends that the District Court find Captain Reaux and Warden Zavislan are

not entitled to qualified immunity from Plaintiff’s Eighth Amendment claim regarding the

Defendants’ deliberate indifference to Plaintiff’s prescribed medical treatment, and that the District

Court deny Defendants’ motion to dismiss Claim (2)(b) accordingly.

CONCLUSION 

The Court concludes that the Defendants, sued in their official capacities, are entitled to

sovereign immunity for Plaintiff’s claims against them. The Court further finds that Nurse Doug

is entitled to qualified immunity as to Claim (1)(b), and Captain Reaux and Warden Zavislan are

entitled to qualified immunity as to Claim (2)(a). However, Captain Reaux and Warden Zavislan

are not entitled to qualified immunity as to Claim (2)(b). Accordingly, the Court RECOMMENDS

that Defendants’ Motion to Dismiss Second Amended Prisoner Complaint (Doc. 14) [filed May 21,

2012; docket #27] be GRANTED IN PART and DENIED IN PART as set forth herein. 

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Respectfully submitted at Denver, Colorado, this 30th day of July, 2012.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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