Chenoweth v. Guzman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 24-cv-00967-PAB-KAS

ANTHONY JOHN CHENOWETH,

Plaintiff,

v.

GUZMAN, Officer, and

C. KUDLAUSKAS, PA-C,

Defendants.

_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA

This matter is before the Court on Defendants’ Motion to Dismiss Amended

Complaint [ECF No. 25] for Under Rule 12(b)(6) [#42]1 (the “Motion”). Plaintiff, who

proceeds as a pro se litigant,2 filed a Response [#45] in opposition to the Motion [#42],

Defendants filed a Reply [#51], and Plaintiff filed a Sur-Reply [#53]. The Motion [#42] has

been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. §

1 “[42]” is an example of the convention that the Court uses to identify the docket number assigned

to a specific filing by the Court’s case management and electronic case filing system (CM/ECF).

This convention is used throughout this Recommendation.

2 Because of Plaintiff’s pro se status, the Court liberally construes his filings. Haines v. Kerner,

404 U.S. 519, 520-21 (1972). However, the Court cannot act as a plaintiff’s advocate and must

still apply the same procedural rules and substantive law to a pro se litigant as to a represented

party. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Yang v. Archuleta, 525

F.3d 925, 927 n.1 (10th Cir. 2008) (“Pro se status does not excuse the obligation of any litigant to

comply with the fundamental requirements of the Federal Rules of Civil and Appellate

Procedure.”) (citation and internal quotation marks omitted). Thus, while the Court makes “some

allowances” for a pro se plaintiff’s “failure to cite proper legal authority, his confusion of various

legal theories, his poor syntax and sentence construction, or his unfamiliarity with the pleading

requirements,” the Court “cannot take on the responsibility of serving as the litigant’s attorney in

constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425

F.3d 836, 840 (10th Cir. 2005).

636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#43]. The

Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons

stated below, the Court RECOMMENDS that the Motion [#42] be GRANTED in part and

DENIED in part.

I. Background3

Plaintiff is a convicted and sentenced state prisoner in the custody of the Colorado

Department of Corrections. Am. Compl. [#25] at 2. Plaintiff filed an Amended Prisoner

Complaint [#25] (the “Amended Complaint”) asserting two claims against Defendants Joel

Guzman (“Guzman”) and Charles Kudlauskas (“Kudlauskas”), who are employees at the

Buena Vista Correctional Facility (“BVCF”). Defendant Guzman is an officer and

Defendant Kudlauskas is a medical provider. Id. at 2-3. Plaintiff alleges that Defendants

violated his Eighth Amendment rights while incarcerated at BVCF. Id. at 7-8.

Plaintiff’s first claim alleges that, on or about July 10, 2023, he was working in the

kitchen when Sergeant Torrez, Defendant Guzman’s wife, ordered him to clean the

compost room. Id. at 7. Plaintiff claims that Sergeant Torrez smiled at him, which caused

Defendant Guzman to become “enraged with jealousy” and “yank[] [Plaintiff] on [his] left

arm.” Id. Defendant Guzman then instructed Plaintiff not to smile at Sergeant Torrez. Id.

Plaintiff further alleges that approximately two weeks later, Defendant Guzman yanked

on his left arm a second time when Sergeant Torrez smiled at Plaintiff while giving him

3 The facts are drawn from the allegations in Plaintiff's Amended Complaint [#25], which the Court

accepts as true at this stage of the proceedings. See Wilson v. Montano, 715 F.3d 847, 850 n.1

(10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The Court does

not consider any additional factual allegations raised by Plaintiff in the briefing. See In re Qwest

Commc'ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (disregarding additional factual

claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may not effectively

amend their [c]omplaint by alleging new facts in their response to a motion to dismiss”).

orders to slice bread. Id. As a result, Plaintiff alleges he has experienced extreme pain in

his left shoulder. Id. This has interfered with his ability to accomplish everyday activities

such as dressing himself, showering, and pushing himself off his bed. Id. At one point,

Plaintiff was placed in restrictive housing because he was unable to defend himself

against other inmates due to the nature of his injury. Id. Plaintiff now brings a claim against

Defendant Guzman for excessive force under the Eighth Amendment. Id.

As a result of these alleged injuries, Plaintiff sought medical attention from

Defendant Kudlauskas. Id. Defendant Kudlauskas ordered an x-ray of Plaintiff’s shoulder

and further ordered Plaintiff to undergo a course of physical therapy. Id. Plaintiff alleges

that upon completion of physical therapy, he asked Defendant Kudlauskas to order an

MRI on his shoulder, believing there was tendon damage. Id. According to Plaintiff,

Defendant Kudlauskas indicated that more steps needed to be taken before ordering an

MRI, such as seeing an outside physical therapist. Id. Plaintiff expressed on numerous

occasions, in meetings and through written grievances, that he believed he needed an

MRI of his left shoulder and that he was still experiencing pain. Id. Ultimately, Plaintiff did

not receive an MRI while incarcerated at BVCF, nor did he receive any further treatment

after he completed the prescribed physical therapy course in August 2023. Id. Plaintiff

now brings a claim for deliberate indifference under the Eighth Amendment against

Defendant Kudlauskas on the grounds that he “purposefully denied [Plaintiff] treatment

because he maliciously wanted to see [Plaintiff] suffer great amounts of pain[.]” Id. at 8.

Plaintiff filed his Amended Complaint [#25] on September 23, 2024, asserting

Eighth Amendment claims against Defendants in their individual and official capacities.

Am. Compl. [#25] at 2-3. Shortly thereafter, a Magistrate Judge recommended that the

claims against Defendants in their official capacities be dismissed as barred by the

Eleventh Amendment. See Recommendation [#26]. A District Judge adopted the

Recommendation [#26]. See Order Adopting Recommendation [#27]. Defendants

subsequently filed the instant Motion [#42], asserting that Plaintiff failed to plausibly allege

actionable Eighth Amendment claims and that Defendants are entitled to qualified

immunity. See Motion [#42].

Given the earlier dismissal of Plaintiff’s official capacity claims, only individual

capacity claims remain against Defendant Guzman for excessive force and Defendant

Kudlauskas for deliberate indifference to serious medical needs.

II. Legal Standards

A. Rule 12(b)(6)

Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]

to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the

sufficiency of the allegations within the four corners of the complaint after taking those

allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). However,

conclusory allegations are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556

U.S. 662, 681 (2009). Rather, “[a] complaint must contain ‘enough facts to state a claim

to relief that is plausible on its face.’” Santa Fe All. for Pub. Health & Safety v. City of

Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. “When the complaint includes ‘well-

pleaded allegations, a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.’” Carraway v. State Farm & Cas. Co.,

No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Iqbal, 556 U.S.

at 679).

“A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do . . . [n]or does a complaint suffice if it tenders

naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal

quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint

alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC

Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule

12(b)(6) motion is not to weigh potential evidence that the parties might present at

trial[.]” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.

1999).

B. Qualified Immunity

“The doctrine of qualified immunity shields officials from civil liability so long as

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

a reasonable person would have known.’” Est. of Lockett v. Fallin, 841 F.3d 1098, 1107

(10th Cir. 2016) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). Once the defense of

qualified immunity has been raised, “the onus is on the plaintiff to demonstrate ‘(1) that

the official violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.’” Quinn v. Young, 780 F.3d 998, 1004

(10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)) (internal

quotations omitted). “If the plaintiff fails to satisfy either part of the two-part inquiry, the

court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156

(10th Cir. 2001). When considering the first prong, the Court must look at whether the

facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional

violation. Saucier v. Katz, 533 U.S. 194, 201 (2001); Robbins v. Oklahoma, 519 F.3d

1242, 1249 (10th Cir. 2008) (holding that a plaintiff “must allege facts sufficient to show

(assuming they are true) that the defendants plausibly violated [his] constitutional rights,

and that those rights were clearly established at the time”). If the plaintiff fails to state a

constitutional claim, dismissal based on qualified immunity is appropriate. See Montoya

v. Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018) (“[I]f the plaintiff failed to state a claim under

Rule 12(b)(6), the government would also be entitled to government immunity.”).

Regarding the second prong, “[t]he law is clearly established when a Supreme

Court or [published] Tenth Circuit precedent is on point or the alleged right is clearly

established from case law in other circuits.” Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th

Cir. 2022) (citation omitted); see also Quinn, 780 F.3d at 1005 (noting that clearly

established law arises from “an on-point Supreme Court or published Tenth Circuit

decision” or the “clearly established weight of authority from other courts”); Ullery v.

Bradley, 949 F.3d 1282, 1291-92 (10th Cir. 2020) (recognizing that the law was clearly

established based on the consensus of persuasive authority from six other circuits). “The

plaintiff bears the burden of citing . . . what he thinks constitutes clearly established law.”

Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010).

III. Analysis

A. Claim One against Defendant Guzman: Excessive Force

Plaintiff claims that Defendant Guzman violated his Eighth Amendment rights and

subjected him to excessive force when Defendant Guzman yanked his left arm on two

separate occasions in an apparent jealous rage, causing him extreme pain. See Am.

Compl. [#25] at 7. Defendant Guzman argues that Plaintiff has failed to state an

actionable excessive force claim under the Eighth Amendment. See Motion [#42] at 4.

When a prisoner “alleges that he was subject to excessive force while

incarcerated, that claim of excessive force falls under the rubric of the Eighth

Amendment’s ban on cruel and unusual punishment.” Fleet v. Tidwell, No. 14-cv-02632-

NYW, 2015 WL 4761190, at *5 (D. Colo. Aug. 13, 2015). The “core judicial inquiry” is

“whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” See id. (quoting Wilkins v. Gaddy, 559 U.S.

34, 36 (2010)). Analyzing an excessive force claim is a two-pronged inquiry, consisting

of: “(1) an objective prong that asks if the alleged wrongdoing was objectively harmful

enough to establish a constitutional violation, and (2) a subjective prong under which the

plaintiff must show that the officials acted with a sufficiently culpable state of mind.” Giron

v. Corr. Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999) (internal quotations

omitted).

1. Objective Component

The objective component of an excessive force claim is “contextual and responsive

to ‘contemporary standards of decency.’” Hudson v. McMillian, 503 U.S. 1, 8 (1992)

(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)); see also Whitington v. Sokol, No.

06-cv-01245-PAB-CBS, 2009 WL 2588762, at *8 (D. Colo. Aug. 18, 2009). “[A]n inmate

has a constitutional right to be secure in [his or] her bodily integrity and free from attack

by prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). However, as

the Supreme Court has recognized, not “every malevolent touch by a prison guard gives

rise to a federal cause of action.” Hudson, 503 U.S. at 9. Indeed, “[t]he Eighth

Amendment’s prohibition of cruel and unusual punishments necessarily excludes from

constitutional recognition de minimis uses of physical force, provided that” it “is not of a

sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations omitted).

When conduct is “incompatible with evolving standards of decency,” or involves “the

unnecessary and wanton infliction of pain,” it is repugnant. See id. at 10; Northington v.

Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992) (holding that significant physical injury is

not necessary for an Eighth Amendment excessive force claim because the constitutional

inquiry is on whether the infliction of pain was unnecessary and wanton). In analyzing this

objective component, a claim “should be analyzed by determining whether the

defendant’s actions were objectively reasonable in light of the surrounding facts and

circumstances.” Oslund v. Fauvel, No. 15-cv-00491-KMT, 2017 WL 1327253, at *5 (D.

Colo. Apr. 7, 2017). Courts also consider the “actions leading up to and at the moment of

the use of force.” Id.

Defendant Guzman first asserts that Plaintiff has not met the objective component

because a “yank” is “not the kind of force that would offend the conscience of mankind or

is repugnant to the standards of human decency.” Motion [#42] at 6; Reply [#51] at 3-4.

In support, Defendant Guzman cites two cases. Id. First, Defendant Guzman cites to

Norton v. City of Marietta, Oklahoma 432 F.3d 1145, 1156 (10th Cir. 2005). There, the

plaintiff brought excessive force claims against two sheriff’s deputies working in the jail.

Id. One of the defendants approached the plaintiff in his cell to resolve a plumbing issue.

Id. When the defendant officer ordered the plaintiff to lay down on his bed, the plaintiff

disobeyed the lawful order and squatted down, at which point the defendant officer

grabbed the plaintiff by the neck and twisted it. Id. In addressing whether this amounted

to excessive force, the Tenth Circuit reasoned that this degree of force under the

circumstances was not excessive. Id. Defendant Guzman next cites to Marshall v.

Milyard, 415 F. App’x 850 (10th Cir. 2011). There, the plaintiff brought an Eighth

Amendment claim against a prison official after the prison official grabbed the plaintiff’s

right arm and dug his fingernails into the plaintiff’s skin. Marshall v. Milyard, 415 F. App’x

at 851. The plaintiff suffered from minor bruising. Id. There, the Tenth Circuit recognized

that the objective component was lacking, as the force applied was, at best, de minimis.

Id. at 852.

While a yank may not be as severe as pepper spray to the face4, or other physical

altercation invoking severe violence5, Defendant Guzman’s argument that Plaintiff’s injury

was not sufficiently serious is unavailing as applied in this instance. A plaintiff is not

required to sustain serious or significant injuries to satisfy the objective component of an

Eighth Amendment excessive force claim. See Hudson, 503 U.S. at 9; United States v.

4 See Toney v. Harrod, 372 F. Supp. 3d 1156, 1163 (D. Kan. 2019) (noting that, per Tenth Circuit

precedent, “use of pepper spray is not inherently a de minimus use of force” and concluding that

the plaintiff satisfied the objective prong when he alleged that a corrections officer sprayed him

with mace during a dispute regarding the temperature of the plaintiff’s meal, whether the plaintiff’s

entire meal was served, and the timing of the plaintiff’s receipt of his medication).

5 See Hudson, 503 U.S. at 4, 9-10 (concluding that allegations that corrections officer punched

the inmate in the mouth, eyes, chest, and stomach while another officer kicked and punched the

inmate from behind satisfied the objective component of an Eighth Amendment claim).

LaVallee, 439 F.3d 670, 688 (10th Cir. 2006) (recognizing that the “Eighth Amendment .

. . protects against cruel and unusual force, not merely cruel and unusual force that results

in sufficient injury”). “[T]he ultimate constitutional inquiry is directed at whether an

unnecessary and wanton infliction of pain has occurred”; “[i]f so, there is no need for a

plaintiff to allege significant and lasting injuries.” DeSpain v. Uphoff, 264 F.3d 965, 978

(10th Cir. 2001).

Plaintiff adequately alleges that Defendant Guzman’s use of force was not

objectively reasonable under the circumstances. Additionally, Plaintiff has alleged that he

experienced extreme pain in his left shoulder for over a year because of Defendant

Guzman’s actions. Am. Compl. [#25] at 7. As a result, he has had trouble dressing

himself, showering and performing other daily hygienic tasks, and has been unable to

defend himself against violent attacks. Id. These allegations are sufficient to satisfy the

objective prong of Plaintiff’s excessive force claim.

2. Subjective Component

Defendant Guzman next asserts that Plaintiff’s allegations regarding his culpable

state of mind are “conclusory and threadbare”. See Motion [#42] at 6-7 (arguing that

Plaintiff “does not set forth any facts to support the assertion that Mr. Guzman was jealous

and angry, and therefore, acted maliciously or sadistically with the intent to cause harm.”).

The subjective component focuses “on whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and sadistically for the very purpose

of causing harm.” Webb v. Sterling Corr. Officer Delaney, No. 14-cv-1461-RBJ-CBS,

2016 WL 931218, at *3 (D. Colo. Mar. 11, 2016) (citation omitted); see also Redmond v.

Crowther, 882 F.3d 927, 936 (10th Cir. 2018). “Whether pain is wantonly and

unnecessarily inflicted depends, at least in part, on whether force could have plausibly

been thought to be necessary to maintain order in the institution and to maintain the safety

of the prison personnel or inmates.” Whitington, 2009 WL 2588762, at *8 (quoting Hickey

v. Reeder, 12 F.3d 754, 758 (8th Cir. 1993)); see also Serna v. Colo. Dep’t of Corr., 455

F.3d 1146, 1152 (10th Cir. 2006) (noting that the court “can infer malicious, sadistic intent

from . . . conduct itself where there can be no legitimate purpose for the officers’ conduct”)

(internal quotations omitted).

In determining whether the use of force was necessary or malicious, a court may

consider “the need for application of force, the relationship between that need and the

amount of force used, the threat reasonably perceived by the responsible officials, and

any efforts made to temper the severity of a forceful response.” Stevenson v. Cordova,

No. 14-cv-00649-CBS, 2016 WL 5791243, at *17 (D. Colo. Oct. 4, 2016), aff’d, 733 F.

App’x 939 (10th Cir. 2018) (citation omitted). “Where no legitimate penological purpose

can be inferred from a prison employee’s alleged conduct . . . the conduct itself constitutes

sufficient evidence that force was used ‘maliciously and sadistically for the very purpose

of causing harm.’” Giron, 191 F.3d at 1290 (quoting Whitley, 475 U.S. at 320-21); see

also Johnson v. Soto, No. 17-cv-02379-RBJ-NRN, 2019 WL 861380, at *6 (D. Colo. Feb.

22, 2019) (finding the plaintiff stated a claim for excessive force where prison official tased

him after an earlier disturbance had occurred and the plaintiff had already been

handcuffed and subdued).

In applying the above-listed factors, this Court finds that Plaintiff has alleged facts

sufficient to satisfy the subjective prong. First, according to the allegations, there was no

apparent need for Defendant Guzman to yank Plaintiff by the arm on two separate

occasions merely because Sergeant Torrez smiled at Plaintiff. The Amended Complaint

[#25] does not allege that Plaintiff was being noncompliant with orders or that Defendant

Guzman was responding to an active prison disruption, disturbance, or emergency. See

Am. Compl. [#25]. Rather, Plaintiff was allegedly performing his regular duties in the

kitchen. Id. at 7. Second, the only alleged threats were two occasions on which Defendant

Guzman’s wife, Sergeant Torrez, smiled at Plaintiff; however, this was far from a threat

to the safety of staff or inmates. See id. Taking Plaintiff’s allegations as true, the Court

can reasonably infer that Defendant Guzman reacted only to cause harm to Plaintiff

because Defendant Guzman’s wife smiled at him.

3. Clearly Established Constitutional Right

Though the Court finds that Plaintiff adequately alleged both prongs of an

excessive force claim, Plaintiff must establish that the alleged constitutional violation was

clearly established as of July 10, 2023, and July 26, 2023—the dates of the alleged

assaults. Am. Compl. [#25] at 7.

A clearly established right is “generally defined as a right so thoroughly developed

and consistently recognized under the law of the jurisdiction as to be ‘indisputable’ and

‘unquestioned.’” Lobozzo v. Colo. Dep’t of Corr., 429 F. App’x 707, 710 (10th Cir. 2011)

(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)). Plaintiff has not

directed the Court to any Supreme Court or published Tenth Circuit authority. Instead,

Plaintiff states in a conclusory fashion that Defendant Guzman “is not entitled to qualified

immunity” because his conduct “clearly violates [his] constitutional rights[.]” Response

[#45] at 2. Plaintiff falls well short of meeting his burden. Plaintiff points to no case law

that would give Defendant Guzman “fair notice that [his] conduct rose to the level of a

constitutional violation.” See Escobar v. Mora, 496 F. App’x 806, 813 (10th Cir. 2012).

Further, the Court has not been able to independently locate a case that addresses

whether a prison officer violates an inmate’s Eighth Amendment rights by yanking on an

inmate’s arm in a similar context.

In DeSpain, the Tenth Circuit held that a defendant’s claim of qualified immunity

“must fail” when the defendant used pepper spray on an inmate as a practical joke.

DeSpain, 264 F.3d at 979-80. Though the facts in DeSpain are not analogous to the

instant case, the force used in both appears to be unwarranted and unjustified. However,

as the Tenth Circuit has recognized, rights are not clearly established through “excessive-

force principles at only a general level[.]” Redmond, 882 F.3d at 939 (quoting White v.

Pauly, 580 U.S. 73, 79 (2017)). Therefore, the Court concludes that Defendant Guzman

is entitled to qualified immunity because no authority clearly established that the

complained-of conduct amounted to a constitutional violation at the time the conduct

occurred.

Accordingly, the Court recommends that the Motion [#42] be granted and that

Plaintiff’s excessive force claim against Defendant Guzman be dismissed with

prejudice. See Clark v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (reversing denial of

qualified immunity and remanding with instructions to dismiss with prejudice).

B. Claim Two against Defendant Kudlauskas: Deliberate Indifference to

Serious Medical Needs

In support of Claim Two, Plaintiff avers that Defendant Kudlauskas violated his

Eighth Amendment rights by delaying medical treatment, specifically, by not ordering an

MRI after Plaintiff’s repeated requests. Am. Compl. [#25] at 7-8. Defendant Kudlauskas

argues that Plaintiff has failed to allege that he was deliberately indifferent to Plaintiff’s

serious medical needs. Motion [#42] at 7.

During a July 26, 2023 appointment with Plaintiff, Defendant Kudlauskas ordered

an x-ray of Plaintiff’s left shoulder. Am. Compl. [#25] at 7. Subsequently, Defendant

Kudlauskas ordered Plaintiff to complete a physical therapy course, which he did in

August 2023. Id. Following completion of physical therapy, Plaintiff continued to

experience pain in his left shoulder and he requested an MRI at a subsequent

appointment with Defendant Kudlauskas to determine whether he suffered tendon

damage when Defendant Guzman yanked on his arm. Id. According to Plaintiff,

Defendant Kudlauskas informed him that certain steps had to be taken—including a

consultation with an outside physical therapist—before an MRI could be performed. Id.

From October 2023 through January 2024, Plaintiff filed many kites and grievances and

had multiple meetings with Defendant Kudlauskas and other officials wherein he

repeatedly requested an MRI and articulated his willingness to take any steps necessary

to receive the MRI. Id. Plaintiff alleges that beyond the physical therapy course,

Defendant Kudlauskas provided Plaintiff no further medical treatment during the

remainder of his time at BVCF, despite his many complaints. Id. at 7-8. Approximately

one year after the initial assault, Plaintiff was transferred to Sterling Correctional Facility,

where he informed staff that he continued to experience “extreme pain”. Id. at 7.

“A prison official’s deliberate indifference to an inmate’s serious medical needs

violates the Eighth Amendment.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.

2000) (citing Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The “deliberate indifference

standard lies ‘somewhere between the poles of negligence at one end and purpose or

knowledge at the other.’” Est. of Beauford v. Mesa County, Colorado, 35 F.4th 1248, 1262

(10th Cir. 2022) (quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)). Like the

excessive force standard, the deliberate indifference standard contains “both an objective

and a subjective component.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

The Court addresses each component in turn.

1. Objective Component

Defendant Kudlauskas argues that Plaintiff fails to meet the objective component

because he “does not allege that the delay in treatment resulted in any harm to him, let

alone . . . substantial harm[.]” Motion [#42] at 10.

The objective component requires that the “deprivation is ‘sufficiently

serious.’” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan, 511 U.S. 825 (1994)).

“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.’” Id. (quoting Hunt v. Uphoff, 199 F.3d

1220, 1224 (10th Cir. 1999)). Importantly, however, a plaintiff may satisfy the objective

prong based on “[a] delay in medical care . . . [that] result[s] in substantial harm.” Est. of

Beauford, 35 F.4th at 1262 (quoting Mata, 427 F.3d at 751). This could include “lifelong

handicap, permanent loss, or considerable pain.” See id.

In his Amended Complaint, Plaintiff alleges that he was in “extreme pain” and had

to “suffer through [sic] for over a year” because of Defendant Kudlauskas’s denial of his

request for an MRI to determine whether he had suffered a tendon injury. Am. Compl.

[#25] at 7. Plaintiff also alleges that Defendant Kudlauskas provided no treatment, except

for a referral to a course of physical therapy, which Plaintiff completed in August 2023

and after which he was still “had extreme pain in [his] left shoulder.” Id. Plaintiff further

alleges limited mobility in his shoulder which impacted his ability to perform daily tasks.

Id. at 7. Additionally, Plaintiff was allegedly placed in restrictive housing because his

shoulder pain made him unable to defend against an attack by another inmate. Id.

At this motion-to-dismiss stage, these allegations satisfy the objective component

of Plaintiff’s deliberate indifference claim. See Al-Turki v. Robinson, 762 F.3d 1188, 1193

(10th Cir. 2014) (noting that “an intermediate injury, such as the pain experienced while

waiting for treatment and analgesics” may constitute “substantial harm”) (quoting

Kikumura v. Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006), overruled on other grounds

by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also Sparks v. Rittenhouse, 164

F. App’x 712, 718 (10th Cir. 2006) (concluding that allegations of extreme shoulder pain,

loss of feeling, and loss of grip satisfied the objective prong of a deliberate indifference

claim arising from delayed surgery); Blackburn v. Baxter, No. 20-cv-02774, 2021 WL

11449161, at *2, *7-8 (D. Colo. Nov. 2, 2021) (concluding that the plaintiff’s allegations

regarding pain “purportedly caused by the delay obtaining an MRI, properly reading it,

and securing appropriate treatment constitute a sufficiently serious medical need”),

recommendation adopted by 2021 WL 11449162 (Dec. 10, 2021).

2. Subjective Component

The subjective component requires Plaintiff to plausibly allege that Defendant

Kudlauskas had a sufficiently culpable state of mind, i.e., that he knew of and disregarded

an excessive risk to Plaintiff’s health or safety. Est. of Beauford, 35 F.4th at 1262-63.

Plaintiff must plausibly allege that Defendant Kudlauskas was both “aware of facts from

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

must have also draw[n] the inference.” Id. at 1264 (emphasis omitted). Notably,

“[d]eliberate indifference requires more than a showing of simple or heightened

negligence.” Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (citations

omitted). “[I]t is not enough for a prisoner to establish that a prison doctor failed to

diagnose or treat a serious medical condition properly, and this is true even if

the doctor acted negligently.” Horton v. Ward, 123 F. App’x 368, 371-72 (10th Cir.

2005) (citing Sealock, 218 F.3d at 1211). Moreover, “a prisoner who merely disagrees

with a diagnosis or a prescribed course of treatment does not state a constitutional

violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (citing Estelle,

429 U.S. at 107); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)).

Defendant Kudlauskas argues that Plaintiff’s allegations fail to satisfy the

subjective prong because Plaintiff merely disagrees with the prescribed course of

treatment. Motion [#42] at 11. According to Plaintiff’s allegations, Defendant Kudlauskas

recognized Plaintiff’s medical condition and, using his professional judgment, provided a

course of treatment that consisted of an x-ray and a course of physical therapy. Am.

Compl. [#25] at 7. The Court agrees that Defendant Kudlauskas’ decision not to order an

MRI was a matter of medical judgment, which in and of itself does not support an Eighth

Amendment claim. See Estelle, 429 U.S. at 107 (discussing decision not to order an x-

ray); Broadus v. Corr. Health Partners, 770 F. App’x 905, 910 (10th Cir. 2019) (finding no

constitutional violation where provider denied inmate an MRI); Ankeney v. Hartley, No.

09-cv-02085-CMA-MJW, 2010 WL 2004778, at *4 (D. Colo. May 19, 2010) (adopting

recommendation to dismiss deliberate indifference claim arising from a failure to order an

MRI or prescribe specific treatment), aff’d, 524 F. App’x 454, 457-58 (10th Cir. 2013); cf.

Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (“[T]he subjective component is not

satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his

considered medical judgment.”).

However, the Court’s analysis does not end there. “[A]n inference of deliberate

indifference is unwarranted” when medical personnel “order[] treatment consistent with

the symptoms presented and then continue[] to monitor the [inmate’s] condition[.]”

Mathison v. Wilson, 719 F. App’x 806, 809 (10th Cir. 2017) (citing Self, 439 F.3d at 1232-

33). In Mathison, a deliberate indifference claim failed, in part, because medical personnel

continued to monitor the plaintiff’s symptoms. Id. The plaintiff “received medical attention

every time he went to sick call,” and medical personnel “continuously responded to the

risk by treating his pain with injections and medication, x-rays, and an outside consultation

and request for surgery.” Id. Conversely, in Vigil v. Lawrence, a deliberate indifference

claim was allowed to proceed where the initial provider treated the plaintiff, but “failed to

provide follow-up care” despite the plaintiff having submitted over twenty “sick call”

requests. Vigil v. Lawrence, 524 F. Supp. 3d 1120, 1129 (D. Colo. 2021).

According to the Amended Complaint, Defendant Kudlauskas was aware of

Plaintiff’s ongoing shoulder pain. Am. Compl. [#25] at 7. Plaintiff raised the issue of

needing further treatment to Defendant Kudlauskas in multiple meetings over a period of

months, and through many written kites and grievances. Id. Though Defendant

Kudlauskas informed Plaintiff further treatment steps were needed, none were ever

provided to Plaintiff, even after Plaintiff agreed—and asked—to take those necessary

steps. Id. This delay in (or outright refusal of) treatment caused Plaintiff to experience

unnecessarily prolonged pain for nearly a year. Id. The Court concludes, therefore, that

Plaintiff has alleged facts sufficient to establish the subjective prong of the deliberate

indifference analysis. In summary, the Court concludes that Plaintiff has plausibly alleged

an Eighth Amendment violation by Defendant Kudlauskas.

3. Clearly Established Constitutional Right

Defendant Kudlauskas argues that he is entitled to qualified immunity because

Plaintiff “failed to allege facts establishing the violation of a constitutional right” and,

therefore, has failed to allege violation of a clearly established one. Motion [#42] at 12.

Because the Court finds that Plaintiff has adequately alleged a deliberate indifference

claim against Defendant Kudlauskas, the Court must consider whether the asserted right

was clearly established at the time of Defendant Kudlauskas’s alleged conduct.

In McCowan v. Morales, 945 F.3d 1276 (10th Cir. 2019), the court affirmed a lower

court’s denial of qualified immunity where prison officials delayed medical treatment for a

shoulder injury the pretrial detainee incurred during transport to the police station

following his arrest for drunk driving. McCowan, 945 F.3d at 1279, 1290-92 (applying

analogous Fourteenth Amendment deliberate indifference analysis to pretrial detainee

context). The detainee purportedly went without medical care for over two hours while he

was at the police station. Id. at 1290. While at the police station, the detainee informed

the defendant officer that he had previously injured his shoulder, that his shoulder was

re-injured during transport to the police station, and that he experienced excruciating

shoulder pain; however, the officer disregarded that information. Id. at 1292. In affirming

qualified immunity’s denial, the court reasoned that the “constitutional violation was

clearly established by August 2015,” when the detainee experienced delayed medical

care. Id. In support, the court pointed to Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th

Cir. 2002), where it concluded that a jury could find that an officer may have been

deliberately indifferent to a pretrial detainee’s serious health needs arising from an

untreated panic attack, which the arresting officer ignored. Id. at 1292-93. The court also

pointed to Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000), in which it concluded that

a convicted prisoner established a deliberate indifference claim where he complained of

symptoms including “crushing” chest pain, his complaints went ignored, and he was

forced to suffer for several days before prison officials transported him to the hospital. Id.

at 1293.

The Court concludes that this published Tenth Circuit precedent placed Defendant

Kudlauskas on notice that his alleged conduct “unconstitutionally deprived [Plaintiff] of

medical care needed for a serious medical need.” Id. Therefore, Defendant Kudlauskas

is not entitled to qualified immunity. Accordingly, the Court recommends that the Motion

[#42] be denied with respect to Plaintiff’s deliberate indifference claim against Defendant

Kudlauskas.

IV. Conclusion

Based on the foregoing,

IT IS HEREBY RECOMMENDED that Defendants’ Motion [#42] be GRANTED in

part and DENIED in part, as outlined above.6

IT IS FURTHER ORDERED that any party may file objections within 14 days of

service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,

“within 14 days after being served with a copy of the recommended disposition, a party

may serve and file specific written objections to the proposed findings and

6 If this Recommendation is adopted, then only Plaintiff’s deliberate indifference claim against

Defendant Kudlauskas (Claim Two) will remain.

recommendations. A party may respond to another party’s objections within 14 days after

being served with a copy.” “[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. 2121 E. 30th St., 73 F.3d

1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the

district court's attention on the factual and legal issues that are truly in dispute.” /d. “[A]

party who fails to make a timely objection to the magistrate judge’s findings and

recommendations waives appellate review of both factual and legal questions.” Morales-

Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).

Dated: July 22, 2025 BY THE COURT:

Kathryn A. Starnella

United States Magistrate Judge

21