Anderson v. Long ( 2023 )

Appellate Case: 23-1050 Document: 010110966177 Date Filed: 12/11/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
BRIAN ANDERSON,
Plaintiff - Appellant,
v. No. 23-1050
(D.C. No. 1:21-CV-03453-KLM)
JEFF LONG, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
_________________________________
Brian Anderson appeals the dismissal of his pro se civil-rights action claiming
that Jeff Long, the warden of Colorado’s Sterling Correctional Facility, violated his
Eighth Amendment rights by failing to implement a policy of providing single-person
prison cells to medically vulnerable inmates to prevent him from contracting
Covid-19. A magistrate judge acting with the parties’ consent, see 28 U.S.C.
§ 636(c)(1), ruled that Anderson failed to allege an Eighth Amendment violation and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 23-1050 Document: 010110966177 Date Filed: 12/11/2023 Page: 2
Long was entitled to qualified immunity. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
I
We summarize the facts alleged in the amended complaint and appropriately
considered exhibits. 1 Anderson is 63 years old and suffers from an auto-immune
disease that puts him at heightened risk of complications from Covid-19. In early
2020, when he was confined at Sterling Correctional Facility, the Colorado
Department of Corrections (CDOC) took measures to prevent spread of the virus,
including agreeing to issue medically vulnerable inmates single-person prison cells.
CDOC’s executive director advised Long to implement the single-cell policy under a
consent decree entered in a different lawsuit, but Long failed to do so. In August
2020, correctional officers told inmates that those who were 60 years of age and
older with medical conditions would be issued single cells to prevent them from
catching Covid-19. Anderson told an officer identified as Sergeant Johnson that he
had an auto-immune disease, and he asked if he would be placed in a single cell; but
Sergeant Johnson replied that Anderson’s name was not on the list of inmates being
issued single cells. Although some inmates were temporarily granted single cells,
others were not, and several died of Covid-19. Long’s refusal to implement the
single-cell policy caused Anderson to contract Covid-19 in November 2020. After
1
Although this case was dismissed on a motion under Federal Rule of Civil
Procedure 12(b)(6), we may consider documents attached to the amended complaint
and those referenced therein that are central to Anderson’s claim. See GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
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catching the virus he fainted twice, suffered two strokes, and sustained damage to his
heart and lungs. He continues to suffer from complications and requires ongoing
treatment. The complaint sought damages and injunctive relief. 2
Long moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. The magistrate judge granted the motion, ruling that
Anderson failed to allege a constitutional violation and Long was entitled to qualified
immunity. The magistrate judge determined that there were no allegations that Long
subjectively knew about Anderson’s condition or knew that Anderson faced a
substantial risk of harm, and thus the allegations were insufficient to support a
reasonable inference that Long consciously disregarded the risk to Anderson when he
failed to implement the single-cell policy.
II
“We review de novo the district court’s ruling on a Rule 12(b)(6) motion to
dismiss for failure to state a claim for relief.” Bledsoe v. Carreno, 53 F.4th 589, 606
(10th Cir. 2022). “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
2
Anderson has abandoned his request for injunctive relief by failing to
advance the issue on appeal. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir.
2011) (issues omitted from an opening brief are abandoned). He has also waived his
argument that Long allegedly used the administrative grievance process to deny him
a single cell. Anderson’s opening brief contains one sentence stating that his
grievance requesting a single cell was denied because an “administrative regulation
prohibits filing grievances regarding cells.” Aplt. Opening Br. at 9 (cleaned up).
Such “scattered statements . . . fail to frame and develop an issue sufficient to invoke
appellate review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
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its face.” Id. (internal quotation marks omitted). We liberally construe pro se
pleadings, but we may not craft arguments or otherwise advocate on behalf of a
pro se litigant. See Garrett Selby Connor Maddux & Janer, 425 F.3d 836, 840-41
(10th Cir. 2005). A “broad reading of the plaintiff’s complaint does not relieve the
plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
When a defendant asserts qualified immunity “[o]n a motion to dismiss, it is
the defendant’s conduct as alleged in the complaint that is scrutinized for
constitutionality.” Bledsoe, 53 F.4th at 607 (cleaned up). We evaluate “1) whether
the plaintiff has alleged facts showing a constitutional violation; and 2) whether that
constitutional violation was clearly established or obvious at the time of the incident
in question.” Id. at 601. When, as here, the plaintiff fails on the first test, we need
not consider the second.
The Eighth Amendment prohibits “cruel and unusual punishments,” U.S.
Const. amend. VIII, including a prison official’s “deliberate indifference to serious
medical needs of prisoners,” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)
(internal quotation marks omitted). Deliberate indifference has two prongs: an
objective prong that requires an “alleged deprivation . . . sufficiently serious to
constitute a deprivation of constitutional dimension,” and a subjective prong
requiring that “the prison official . . . have a sufficiently culpable state of mind.”
Self, 439 F.3d at 1230-31 (internal quotation marks omitted). “[A] prison official
cannot be liable unless the official knows of and disregards an excessive risk to
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inmate health or safety; 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. at 1231 (internal quotation marks omitted).
The question here is whether the allegations in the amended complaint satisfy
the subjective prong. Anderson contends they do because he alleged that Long failed
to implement the single-cell policy to prevent medically vulnerable inmates from
contracting Covid-19. There are no allegations, however, that Long knew Anderson
had an auto-immune disease or other risk factors that made him more vulnerable to
Covid-19. Although he alleged that Sergeant Johnson and other prison staff knew he
had an auto-immune disease, he did not allege that Long knew of the disease or that
he had any particular vulnerability to Covid-19.
Nor did Anderson allege that Long consciously disregarded his particular
risks. See Self, 439 F.3d at 1231 (“The subjective component is akin to recklessness
in the criminal law, where, to act recklessly, a person must consciously disregard a
substantial risk of serious harm.” (internal quotation marks omitted)). Anderson
simply alleged that Sergeant Johnson told him that his name was not on the list of
inmates who were issued single cells. Although he also alleged that Long failed to
implement the single-cell policy, that failure in itself could not establish that Long
made a conscious decision to disregard Anderson’s particular vulnerabilities and
deny him an individual cell, which some inmates were granted.
Anderson maintains that Long’s alleged failure to implement the single-cell
policy contravened a consent decree entered in another case. He suggests that Long’s
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alleged violation of the consent decree supports his assertion of deliberate
indifference. It does not. The consent decree was issued in another case after
Anderson contracted Covid-19.
Anderson made only a conclusory assertion that Long was deliberately
indifferent. He did not allege that Long knew he had an auto-immune disease, nor
did he allege that Long made a decision to specifically deny Anderson an individual
cell. Absent any such allegations, Anderson failed to state a constitutional violation,
and Long was entitled to qualified immunity.
III
The district court’s judgment is affirmed. Anderson’s motion to proceed on
appeal without prepayment of costs or fees is granted.
Entered for the Court
Harris L Hartz
Circuit Judge
6