Gregory Morris Sanders v. ALAN WERNER, I.D. 4861 - CDOC via CCI @ ACF-Trans. Supervisor, in his individual

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
GREGORY MORRIS SANDERS,
Plaintiff - Appellant,
v.
ALAN WERNER, I.D. #4861 - CDOC via
CCI @ ACF-Trans. Supervisor, in his
individual and official capacity only;
COLORADO DEPARTMENT OF
CORRECTIONS; COLORADO
CORRECTIONAL INDUSTRIES,
Defendants - Appellees.
No. 21-1096
(D.C. No. 1:19-CV-01736-KLM)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, BALDOCK, and EID, Circuit Judges.
_________________________________
Gregory Sanders, pro se, 1 appeals the dismissal of his 42 U.S.C. § 1983
complaint against prison officials for alleged violations of his Eighth Amendment
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
1 Because Mr. Sanders proceeds pro se, we construe his arguments liberally,
but we “cannot take on the responsibility of serving as [his] attorney in constructing
FILED
United States Court of Appeals
Tenth Circuit
April 8, 2022
Christopher M. Wolpert
Clerk of Court
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rights stemming from a prison workplace accident. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
BACKGROUND 2
Mr. Sanders is an inmate incarcerated with the Colorado Department of
Corrections. He worked at Colorado Correctional Industries at Arrowhead
Transportation. He crushed two of his fingers, causing amputation and permanent
disfigurement, when assisting a coworker with a stuck pull-down door and his fingers
caught between a section of the door lacking a protective bumper.
Defendant Alan Werner was the Transportation Supervisor. Mr. Sanders
alleged Mr. Werner was negligent in failing “to have repaired, replaced or removed
the defective door from service” and that Mr. Sanders “was apprised verbally by
Plaintiff Sanders on multiple occasions prior to incident injury that the subject matter
door, among other tools and equipment, was not functioning properly, as the door
would become stuck in places along the rails in which housed the doors rollers.”
R. vol. III at 69–70. Mr. Sanders also alleged that “had [he] been provided with
relevant on-the-job training . . . such training would have impressed upon [him] an
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
2 The facts set forth here come from Mr. Sanders’s Third Amended Complaint,
the well-pleaded allegations of which we take as true for purposes of analyzing a
motion to dismiss. See Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282
(10th Cir. 2019). In his sixth issue on appeal, Mr. Sanders clarifies that his Third
Amended Complaint incorporated the allegations of his prior complaints, but
construing it this way does not change our analysis.
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alternative safer method by which to have assisted with the stuck door.” Id. at 70.
He further alleged that, at the Arrowhead Transportation facility, there was “a
subculture of masculinity,” underlying Mr. Werner’s
view of those “offenders” who[] are visibly endowed with
attributes of physical strength a[s] those whom he was not
necessarily concerned with when they used defective
equipment because they were expected to use their brute
strength to overcome the limitations of the defective tools
by accomplishing their tasks by relying on their prodigious
strength[].
Id. at 70–71.
Mr. Sanders pled violations of both the Fourteenth and Eighth Amendments.
Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). The magistrate judge,
exercising jurisdiction by consent under 28 U.S.C. § 636(c), granted the motion. The
court dismissed the Fourteenth Amendment claims because Mr. Sanders’s allegations
were more appropriately analyzed under the specific provisions of the Eighth
Amendment than the general guarantees of due process set forth in the Fourteenth
Amendment. The court dismissed the Eighth Amendment claims because
Mr. Sanders’s allegations, at most, amounted to negligence rather than deliberate
indifference rising to the level of unconstitutional cruel and unusual punishment.
This appeal followed.
DISCUSSION
“We review de novo a district court’s decision on a Rule 12(b)(6) motion for
dismissal for failure to state a claim. Under this standard, we must accept all the
well-pleaded allegations of the complaint as true and must construe them in the light
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most favorable to the plaintiff.” Waller v. City & Cnty. of Denver, 932 F.3d 1277,
1282 (10th Cir. 2019) (italics, citation, and internal quotation marks omitted).
“Conclusory allegations are not entitled to the assumption of truth. In fact, we
disregard conclusory statements and look to the remaining factual allegations to see
whether Plaintiff[] ha[s] stated a plausible claim.” Brooks v. Mentor Worldwide LLC,
985 F.3d 1272, 1281 (10th Cir.) (citation and quotation marks omitted), cert. denied,
142 S. Ct. 477 (2021). “A plausible claim includes facts from which we may
reasonably infer Defendant’s liability. Plaintiffs must nudge the claim across the line
from conceivable or speculative to plausible. Allegations that are merely consistent
with a defendant’s liability stop short of that line.” Id. (citations and quotation marks
omitted).
Mr. Sanders does not challenge the dismissal of his Fourteenth Amendment
claims but he does challenge the dismissal of his Eighth Amendment claims. He
raises six issues on appeal. In the first, he argues the magistrate judge lacked the
authority to rule on the motion to dismiss. In the second, third, fourth, and sixth,
which we consider together, he argues the court erred in construing his complaint as
failing to sufficiently allege deliberate indifference to state a plausible Eighth
Amendment claim. In the fifth, he argues the court should have granted him leave to
amend his complaint.
We reject Mr. Sanders’s first argument because he expressly consented in
writing “to hav[ing] a United States magistrate judge conduct all proceedings in this
civil action, including trial, and to order the entry of a final judgment.” Supp. R. at
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16. The consent form Mr. Sanders signed references 28 U.S.C. § 636(c), which
permits a magistrate judge to exercise jurisdiction over civil matters by consent of
both parties.
In his reply brief, while Mr. Sanders concedes the validity of his signature on
the second page of the consent form, he argues that he had checked the box
indicating non-consent to magistrate jurisdiction, and that defense counsel
surreptitiously replaced that page with one falsely indicating he did consent. But
immediately after the parties submitted the consent form, the court issued an “Order
of Reference,” which stated: “Pursuant to the consent of the parties to the
jurisdiction of the magistrate judge, this case is referred to Magistrate Judge Kristen
L. Mix for all purposes pursuant to 28 U.S.C. § 636(c).” R. vol. 3 at 133 (record
citations omitted). Mr. Sanders did not object to this order for the remainder of the
case’s pendency before the district court. He has therefore forfeited any objection to
the validity of his consent on appeal. See Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d
1229, 1233 (10th Cir. 1997) (“[A]n issue must be presented to, considered and
decided by the trial court before it can be raised on appeal.” (internal quotation marks
and brackets omitted)). 3
3 Mr. Sanders’s misapprehension of the court’s order to mean that the
magistrate judge’s “assignment was pending/temporary until such time that he would
later elect to non-consent respecting the deadline dates for such,” Aplt. Reply Br. at
5, does not excuse his forfeiture of the objection he now seeks to raise on appeal. See
Garrett, 425 F.3d at 840 (“[P]ro se parties [must] follow the same rules of procedure
that govern other litigants.” (internal quotation marks omitted)).
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As to Mr. Sanders’s second, third, fourth, and sixth arguments, we analyze an
Eighth Amendment claim alleging cruel and unusual punishment in the context of a
prison work assignment like other conditions-of-confinement claims. See Choate v.
Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993). Such claims have both a subjective and
objective component: “[C]ourts considering a prisoner’s claim must ask both if the
officials acted with a sufficiently culpable state of mind and if the alleged
wrongdoing was objectively harmful enough to establish a constitutional violation.”
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (brackets and internal quotation marks
omitted). An official is not liable “unless the official knows of and disregards an
excessive risk to 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.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). Mere negligence is not enough: “deliberate indifference describes a state of
mind more blameworthy than negligence.” Id. at 835.
Mr. Sanders argues he sufficiently pled a claim of deliberate indifference,
pointing to the seriousness of his injuries and his allegation that he had notified
Mr. Werner of the condition of the sliding door on several occasions prior to the
accident. But we agree with the district court that these allegations do not show
Mr. Werner acted with the level of subjective culpability necessary to show an Eighth
Amendment violation. At most, they “simply show that [Mr. Werner] knew that
there was a sliding door that would sometimes become stuck and that would need to
be forced along its rollers.” R. vol. III at 176. Put differently, even if Mr. Sanders
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sufficiently alleged that an official in Mr. Werner’s position should have been aware
of the risk posed by the sliding door and should have done more to protect inmates
subject to that risk, Mr. Werner’s alleged “failure to alleviate a significant risk that
he should have perceived but did not, while no cause for commendation, cannot . . .
be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. The court
therefore correctly dismissed Mr. Sanders’s complaint for failure to plausibly state an
Eighth Amendment claim.
Finally, Mr. Sanders argues the court should have allowed him to amend his
complaint a fourth time. But he did not request leave to file a fourth amended
complaint before the district court, and so has forfeited that argument on appeal. See
Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228,
1236 (10th Cir. 2020).
CONCLUSION
We affirm the judgment of the district court. We grant Mr. Sanders’s motion
for leave to proceed in forma pauperis.
Entered for the Court
Allison H. Eid
Circuit Judge
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