Duncan v. Hickenlooper

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 25, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JAMES ROGER DUNCAN,

Plaintiff - Appellant,

v. No. 15-1034
(D.C. No. 1:14-CV-00301-REB-BNB)
JOHN W. HICKENLOOPER, Governor; (D. Colo.)
RICK RAEMISCH, Executive Director;
MILYARD, Warden; FALK, Warden;
LUECK, Case Manager,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
_________________________________

James Roger Duncan, a pro se Colorado inmate, complains that he was

exposed to contaminated drinking water while confined at the Sterling Correctional

Facility (SCF), in Sterling, Colorado. He brought this action under 42 U.S.C. § 1983,

alleging among other things that several state officials violated the Eighth

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. See Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
Amendment because they knew of the contamination and were deliberately

indifferent to it. The district court dismissed the Eighth Amendment claims under

Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

in part, reverse in part, and remand for further proceedings.

I. Background

A. Facts

According to the complaint, the drinking water at SCF has been contaminated

with uranium and trihalomethanes since the facility opened in 1998. Prison officials

and Colorado’s governors have known about the contamination but have done

nothing to rectify the problem. Instead, officials at the Colorado Department of

Corrections (CDOC) conspired to cover up the magnitude of the contamination,

forcing Mr. Duncan to drink the water for some 15 years. An alternative supply of

drinking water was provided to prisoners from a CDOC facility in Cañon City, but

that supply is also contaminated with uranium, and prison staff drink bottled water.

Mr. Duncan filed grievances over the matter, but his grievances were denied by the

governors, wardens, and case managers.

Mr. Duncan attached to his complaint several documents, including (1) a

portion of a memo issued by CDOC Executive Director Rick Raemisch reporting that

on February 4, 2013, a “violation” was issued to Sterling for exceeding the standard

for uranium in the water (the Raemisch memo), R. at 25; (2) a notice issued by

Sterling dated February 21, 2008, reflecting violations of the drinking-water standard

for uranium and advising residents to use an alternative source of drinking water;

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(3) a notice issued by Sterling indicating violations in June 2012 of the

drinking-water standard for trihalomethanes and suggesting that residents use an

alternative source of drinking water; and (4) an online news article dated August 23,

2013, describing the contamination in Sterling and questioning the cost-effectiveness

of CDOC’s decision to transport alternative drinking water from Cañon City. These

documents may be properly considered on a motion to dismiss because they are

attached to the complaint, they are central to the claims, and their authenticity is not

in dispute. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

B. Procedural History

The complaint named as defendants Governor John Hickenlooper and former

Governor Bill Ritter, CDOC Executive Director Rick Raemisch, SCF Wardens Kevin

Milyard and James Falk, and SCF case manager Jim Lueck (Defendants). The only

claims pursued on appeal are that Mr. Duncan’s Eighth Amendment rights were

violated by Defendants’ deliberate indifference to an unconstitutional condition of

confinement.1 He sought compensatory and punitive damages, as well as declaratory

and injunctive relief. Defendants moved to dismiss, arguing (1) that claims for

monetary damages from Defendants in their official capacities are barred by the

1
The other claims alleged violations of Mr. Duncan’s First, Fifth, and
Fourteenth Amendment rights. Mr. Duncan makes sporadic references to his
due-process and equal-protection rights, but these claims are not adequately
developed on appeal. See Holmes v. Colo. Coal. for Homeless Long Term Disability
Plan, 762 F.3d 1195, 1199 (10th Cir. 2014) (declining to consider issues not
adequately briefed on appeal).

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Eleventh Amendment, (2) that the complaint failed to state a plausible Eighth

Amendment claim, and (3) that they were entitled to qualified immunity.

On November 17, 2014, a magistrate judge recommended that the motion to

dismiss be granted. Although the complaint did not specify whether Defendants were

sued in their official capacities, the magistrate judge determined that any request for

money damages against Defendants in their official capacities was barred by the

Eleventh Amendment. The magistrate judge also determined that insofar as the

complaint sought relief against Defendants in their individual capacities, it did not

state a claim because Mr. Duncan failed to allege specific facts showing that

Defendants knew his health was at risk from the contaminated water or that any of

them “created a policy that created contamination of the water.” R. at 233.

According to the magistrate judge, all he provided were “vague and conclusory

allegations that they refused to allow him to drink unpolluted water.” Id.

The magistrate judge warned Mr. Duncan that he had 14 days (or until

December 2, 2014) to file specific, written objections or waive his appellate rights.

After the deadline passed, the district court issued an order on December 11 adopting

the magistrate judge’s recommendation under plain-error review. The court entered a

separate final judgment the next day. Five days later, however, Mr. Duncan asked

the court to consider his untimely objections because he had been under medical care

from October 20 through December 4, 2014, and he did not receive his legal mail

until December 5, after the December 2 deadline. On December 24 the district court

overruled the objections. It noted that they were untimely (although it did not

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specifically address Mr. Duncan’s excuse for being tardy) and that even if the court

were to consider them, they did not warrant reversal of the judgment. The court

reasoned that nothing in the attachments to Mr. Duncan’s complaint “supports the

further inference to plausibly suggest that any defendant was deliberately indifferent

to a substantial risk of harm to plaintiff as a result of [the] condition . . . .” R. at 245.

The court stated that Mr. Duncan’s “insistence that all the defendants knew about the

pollution is simply [too] vague, global, and factually unsubstantiated to survive a

motion to dismiss.” Id. Mr. Duncan again objected, but the court construed the

filing as a motion to reconsider and denied it. This appeal followed.

II. Analysis

A. Firm Waiver Rule

At the outset we must consider whether Mr. Duncan waived his appellate

rights by failing to timely object to the magistrate judge’s report and

recommendation. Under the firm-waiver rule, the “failure to make timely objections

to the [magistrate judge’s] findings or recommendations waives appellate review of

both factual and legal questions.” Cohen v. Longshore, 621 F.3d 1311, 1318

(10th Cir. 2010) (internal quotation marks omitted). But “the firm waiver rule does

not apply when (1) a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object, or when (2) the interests of

justice require review.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)

(internal quotation marks omitted).

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 The first exception appears to apply here. Mr. Duncan has prosecuted this suit

pro se and asserts that he was hospitalized throughout the entire objection period and

did not receive any legal mail, including (presumably) the report and

recommendation and its notice of the time for objecting and the consequences of

failing to do so. He told the district court that he “was under medical care [f]rom

October 20, 2014 to December 4, 2014 and . . . did not get his legal mail until the

night of [December] fifth.” R. at 240. And on appeal he said that he had been

hospitalized for back surgery from October 20 through approximately November 2

and then “was transferred to the [Denver Reception & Diagnostic Center] (DRDC)

the CDOC Intake part, at the medical department of the DRDC . . . [with] a case of

pneumonia and had to stay there for four (4) weeks.” Aplt. Memo Br. at 1 (filed in

response to the Clerk’s order dated January 28, 2015). He represented that during

this time he received no legal mail and could do no legal work. Because Mr. Duncan

may not have received the magistrate judge’s report and recommendation and

therefore was not informed of the deadline for objecting and the consequences of

failing to object, we will not apply the firm-waiver rule.

B. Eighth Amendment

Mr. Duncan contends that the district court erred in dismissing his Eighth

Amendment claim for failure to state a plausible claim for relief. (He does not,

however, pursue any claims for damages against Defendants in their official

capacities or any claim against Governor Ritter.) We review de novo the dismissal

under Rule 12(b)(6), assuming the factual allegations to be true and asking “whether

6
it is plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton, 587 F.3d

1063, 1068 (10th Cir. 2009). Because Defendants raised the defense of qualified

immunity, Mr. Duncan “bears a heavy two-part burden to show” both that

defendants’ actions violated a constitutional or statutory right and that the right was

clearly established. Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal

quotation marks omitted). “[A] right is clearly established [when] it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Id. (internal quotation marks omitted). In the context of a Rule 12(b)(6) motion, “it

is the defendant’s conduct as alleged in the complaint that is scrutinized for objective

legal reasonableness.” Id. (internal quotation marks omitted). We afford

Mr. Duncan’s pro se materials a liberal construction but do not act as his advocate.

See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).

A prison official’s deliberate indifference to an inmate’s safety may violate the

Eighth Amendment’s ban on cruel and unusual punishment. See Farmer v. Brennan,

511 U.S. 825, 834 (1994). To survive a motion to dismiss, the inmate must allege

both the objective and subjective components of his claim. To satisfy the objective

element, the alleged deprivation must be “sufficiently serious”; that is, it must expose

the inmate to a “substantial risk of serious harm.” Id. (internal quotation marks

omitted). To satisfy the subjective element, the prison official must have acted with

deliberate indifference to the inmate’s 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.

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 Mr. Duncan satisfied the objective prong by alleging facts showing that the

contamination exposed him to a substantial risk of serious harm. The notice issued

by Sterling in February 2008 states that some people exposed to elevated uranium

levels in drinking water “over many years may have an increased risk of getting

cancer and [k]idney toxicity.” R. at 26. The 2012 notice similarly cautions that some

consumers exposed to excessive trihalomethanes “over many years may experience

problems with their liver, kidneys, or central nervous system, and may have an

increased risk of getting cancer.” Id. at 27. These notices advise consumers to drink

water from an alternative source, and the Raemisch memo, which acknowledges the

long-term risks of elevated uranium levels, indicates that water from an alternative

source will be provided to inmates “as a precautionary measure,” id. at 25.2 Also,

Mr. Duncan sufficiently alleges that he was personally injured by the exposure. He

claims that a CT scan confirms that a cyst on one of his kidneys is causing blood to

discharge into his urine; that Jacqueline A. Nemer, M.D. said that he has nerve

damage to his liver as a “direct result of radiation exposure,” id. at 21; that a

physician’s assistant told him his thyroid gland has “shut down” because there was

“too much uranium in [his] system,” id. at 22; and he cites a host of ailments,

2
The Raemisch memo may suggest that the contamination from uranium did
not pose an objectively serious risk of harm because the contamination only slightly
exceeded the safe-water standard. But the city’s 2008 notice of elevated uranium
levels documented a higher contamination level. And because these levels of
uranium may have persisted in the drinking water from 2008 through 2013, we
cannot say at this stage of the proceedings that there was no objectively severe risk of
harm.

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including kidney and immune-system dysfunction, disorders of his nervous system,

degenerative spine conditions, chronic lung and liver disease, and “extreme, daily

abdominal pain,” id. at 21. In our view, Mr. Duncan has plausibly alleged an

objectively serious risk of harm. We therefore turn to the subjective element of the

claims for each group of Defendants.

1. Governor Hickenlooper

Mr. Duncan alleges that Governor Hickenlooper knew that polluted water was

being forced on inmates but remained deliberately indifferent to the risk of harm.

But a plaintiff cannot “merely recite[] . . . element[s] of a [deliberate-indifference]

claim without providing the facts from which one could draw such a conclusion.”

Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013). Mr. Duncan does not

indicate how the governor knew of the contamination, such as by receiving one of the

notices attached to Mr. Duncan’s complaint. Although he refers to “documents from

[the governor] dated July 25, 2013,” R. at 15, those documents are not summarized or

attached to the complaint. Mr. Duncan avers only that “[t]hese [d]ocuments are all

about this place Sterling Correctional facility and its water[.]” Id. at 16 (emphasis

omitted). Without any facts to imply the governor’s knowledge, Mr. Duncan has

failed to “nudge [his] claims across the line from conceivable to plausible.” Robbins

v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (internal quotation marks

omitted).

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 2. Executive Director Raemisch

Mr. Duncan alleges that Director Raemisch “knows about and has or was the

one that ordered the polluted water to be shipped to [SCF].” R. at 10. But he alleges

no facts suggesting that the shipped water was contaminated, or that Director

Raemisch knew it was, so the allegation need not be credited as true. See Ashcroft v.

Iqbal, 556 U.S. 662, 686 (2009) (“[T]he Federal Rules do not require courts to credit

a complaint’s conclusory statements without reference to its factual context.”). And

even though Director Raemisch knew of the contaminated water supplied by Sterling,

the attachments to Mr. Duncan’s complaint refute any allegation that he was

deliberately indifferent to the problem. Director Raemisch was appointed executive

director in June 2013,3 and although the Raemisch memo is undated, the online

article of August 23, 2013, states that water was already being transferred from

Cañon City. Director Raemisch’s prompt action demonstrates an intent to abate the

risk. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (“To prevail on

the subjective component, the prisoner must show that the defendants knew he faced

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

measures to abate it.” (internal quotation marks omitted)).

3
We take judicial notice that Director Raemisch was appointed on June 14,
2013. See https://www.colorado.gov/pacific/governor/cabinet (last visited
November 2, 2015).

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 3. Wardens Milyard and Falk4

Mr. Duncan alleges that Wardens Milyard and Falk (1) knew about the

polluted water, (2) did nothing to correct the problem, and (3) refused to allow him to

drink unpolluted water from 1999 through 2013.5 We note the following in support

of these allegations: Sterling’s notice of elevated uranium levels was distributed to

consumers on February 21, 2008, and the city’s notice of elevated trihalomethane

levels appears to have been distributed in July and August 2012. Because SCF’s

drinking water is supplied by Sterling, it is reasonable to infer that the wardens

received these notices. And because the notices in 2008 and 2012 advised consumers

to drink water from an alternative source to avoid serious health risks, including

cancer, kidney and liver damage, and problems with the central nervous system, one

can infer that the wardens knew about the contamination and the attendant health

risks as of 2008. This knowledge, coupled with Mr. Duncan’s allegations that the

wardens did nothing to abate the risk of harm (the Raemisch memo indicates that

alternative drinking water was not provided to SCF inmates until 2013), states a

plausible claim that Wardens Milyard and Falk were deliberately indifferent. We

4
Mr. Duncan alleges that Warden Milyard “was the Ex-Warden” and Warden
Falk “is the Warden now at [SCF].” R. at 10.
5
Mr. Duncan also alleged that Warden Falk ordered that contaminated water
be trucked in from Cañon City, but, again, we need not credit this allegation to the
extent it asserts the water from Cañon City was polluted.

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therefore reverse the dismissal of the Eighth Amendment claims against them and

remand those claims to the district court to determine the wardens’ liability, if any.6

4. Case Manager Lueck

Finally, Mr. Duncan alleges that case manager Lueck denied his grievance and

refused to let him complete the grievance process, knowing that the polluted water

was being forced on inmates. But the “denial of a grievance, by itself without any

connection to the violation of constitutional rights alleged by plaintiff, does not

establish personal participation under § 1983.” Gallagher, 587 F.3d at 1069. Simply

knowing about the contamination is not enough. See Stewart v. Beach, 701 F.3d

1322, 1328 (10th Cir. 2012) (evidence that warden denied grievance appeal knowing

of the alleged violation was insufficient to show personal participation in the

violation). Mr. Duncan fails to state a plausible claim against case manager Lueck.

III. Conclusion

We reverse the district court’s dismissal of Mr. Duncan’s Eighth Amendment

claims against Wardens Milyard and Falk and remand those claims to the district

court for further proceedings consistent with this disposition. In all other respects,

we affirm the district court’s judgment.

We grant Mr. Duncan’s motion to proceed in forma pauperis, but we remind

6
We express no opinion on the viability of Mr. Duncan’s request for
prospective injunctive relief, which, given our disposition, remains pending.

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him that he must continue making partial payments until his filing and docketing fees

are paid in full.

Entered for the Court

Harris L Hartz
Circuit Judge

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