Bird et al v. State of Wyoming et al

OCR transcription for search; preserved printed pages are authoritative

Case 2:22-cv-00152-NDF Document 47 Filed 10/20/22 Page 1 of 31

IN THE UNITED STATES DISTRICT COURD #3 =. =), ,,

FOR THE DISTRICT OF WYOMING 8 eccyProwen

CHESTER L. BIRD, et al,,

Plaintiffs,
VS. Case No. 22-CV-152-NDF

STATE OF WYOMING, et al.,

Defendant.

OPINION AND ORDER ON MOTIONS TO DISMISS AND MOTION TO AMEND,
AND
REQUIRING PLAINTIFF CHESTER L. BIRD TO SHOW CAUSE WHY FURTHER
FILING RESTRICTIONS SHOULD NOT BE IMPOSED AGAINST HIM

This matter is before the Court on motions to dismiss the amended complaint (ECF
36, 38, 42), a motion to amend the amended complaint (ECF 40), and issues the Court
raises sua sponte. Pro se Plaintiffs Chester L. Bird, Ryan A. Brown, and Richard B. Dague
are inmates in the Wyoming Medium Correctional Institution (““WMCTI”). They sue several
defendants regarding alleged falsification and other inaccuracies in their medical records,
particularly concerning the date they received the Janssen COVID-19 vaccine. As follows,
the Court grants the motions to dismiss, denies the motion to amend, and requires Plaintiff
Chester Bird (but not his co-Plaintiffs) to show cause why the Court should not impose

further filing restrictions against him.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 2:22-cv-00152-NDF Document 47 Filed 10/20/22 Page 2 of 31

[ Background

Plaintiffs bring several claims arising from Defendant Melanie Martinez-Ellis — then
a Health Services Administrator for Corizon, Inc. (a/k/a YesCare) at WMCI — allegedly
falsifying their medical records to make it appear they received the Janssen COVID-19
vaccine twelve days later than they actually did. Plaintiffs allege Martinez-Ellis
administered the Janssen vaccine to them on March 19, 2019 — three days before
information regarding that vaccine was first posted in the facility —but in retaliation for
their filing grievances about that, wrote on their consent forms March 31, 2019 as the
injection date. All of Plaintiffs’ claims in this action arise from those alleged facts.

Plaintiffs allege the timing is important for two reasons. First, they had an earlier
case in this District, 21-cv-139-SWS, Bird et al. v. Martinez-Ellis et al., alleging Martinez-
Ellis and the Warden of WMCI, Michael Pacheco, violated their Fourteenth Amendment
substantive due process rights. They alleged that the patient consent forms disclosed only
the Moderna and Pfizer vaccines, Martinez-Ellis did not inform them she was
administering the Janssen vaccine instead, and no fact sheet was posted regarding that
vaccine until March 22, 2019. Plaintiffs alleged they would have declined the vaccine had
they been aware that it was the Janssen vaccine. They claimed a substantive due process
right to informed consent in order to accept or decline medical treatment, that Martinez-
Ellis violated that right when she administered the vaccine to them, and Warden Pacheco
failed to train or supervise Martinez-Ellis regarding that right. They also brought state law
claims for assault and battery. Chief Judge Scott Skavdahl dismissed the federal claims in

that action with prejudice for failure to state a claim and on Pacheco’s part, qualified

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immunity. Bird v. Martinez-Ellis, 582 F. Supp. 3d 909 (D. Wyo. 2022). Judge Skavdahl
remanded the state law claims to state court. In the same decision, he also found the
Plaintiffs’ motion to file a second amended complaint was futile and denied it. Plaintiffs
appealed the decision to the Tenth Circuit, and the appeal remains pending. They now
claim (in both this action and by way of a pending motion for relief from the judgment in
21-cv-139, ECF 44) that dismissal was based in part on the falsified patient consent forms.

Secondly, and relatedly, Plaintiffs allege that at the time Martinez-Ellis
administered the Janssen vaccine to them, it was generally known to have a risk of causing
blood clotting in three out of a million persons. They allege that the inaccuracy of the
injection date on their consent forms posed a serious risk of harm to them because
healthcare professionals would not know they actually received the vaccines twelve days
earlier than stated.

Plaintiffs filed their original, twenty-five page complaint in state court on June 3,
2022. ECF 2.! Therein, they brought eleven claims. Some of the claims were against
Martinez-Ellis, each regarding her allegedly falsifying the injection date in response to
Plaintiffs’ filing grievances against her for not informing them that they were receiving the
Janssen vaccine. Other claims were directed against Pacheco, a pseudonymous Corizon
supervisor John or Jane Doe, Sergeant George Ross, Corizon, Inc., Kurt Johnson, M.D.

(Corizon’s Regional Director), and Stacie Koch, RN, CCHP (Corizon’s Director of

! It is not particularly clear whether Plaintiffs paid a filing fee in state court, but they have not sought or
been granted in forma pauperis status after the case came to this Court.

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Operations-Wyoming). The claims included 42 U.S.C. § 1983 claims. Plaintiffs sought
$5 million in compensatory damages and $5 million in punitive damages. ECF 2.

The Court received the case by notice of removal on July 14, 2022. All Defendants
named in the original complaint moved to dismiss. ECF 24, 26. Plaintiffs then amended
their complaint as of right under Rule 15. ECF 33. The Court denied the first round of
motions to dismiss without prejudice because they were mooted by the amended complaint.
The amended complaint identifies the pseudonymous supervisor as Jaylene Cunningham,
RN, RDON, acting Health Services Administrator for Corizon; expands one of the claims
(Count Two) to reach all Defendants then-named; adds negligence claims against
Cunningham and Corizon; adds a First Amendment claim against Sergeant Ross; notes
Corizon, Inc. is now also known as YesCare Corp., (hereafter, “Corizon”); and increases
the damages sought to respectively $7 million compensatory and $10 million punitive.
Plaintiffs also add various allegations, resulting in an additional sixteen pages for a total
41 pages. ECF 33.

The amended complaint is the operative pleading and contains the following

fourteen claims:

Amended Legal Theory Defendant(s)
Complaint
Count No.

I First Amendment retaliation in Martinez-Ellis

falsifying injection date in response
to Plaintiffs’ grievances.

Ir Violation of Fourteenth Amendment All Defendants:
substantive due process right to State of Wyoming, Daniel
accurate medical records in| Shannon (Director of WDOC),
Pacheco, Ross, Corizon, Dr.

Case 2:22-cv-00152-NDF Document 47 Filed 10/20/22 Page 5 of 31

respectively falsifying the date and
not requiring it to be corrected.

Johnson, Koch, Martinez-Ellis,
and Cunningham

Ii

Eighth Amendment deliberate
indifference to serious medical need
in falsifying injection date.

Martinez-Ellis

IV

Intentional infliction of emotional
distress (“ITED”) in falsifying the
injection date.

Martinez-Ellis

Negligence in falsifying injection
date and thus failing to ensure
medical records were accurate.

Martinez-Ellis

VI

Negligence in failing to ensure
accurate medical records.

Cunningham

Vit

Negligence in failing to ensure
accurate medical records.

Corizon

VII

Negligence of healthcare provider
under Wyoming Governmental
Claims Act (““WGCA”) in falsifying
injection date as retaliation.

Martinez-Ellis

IX

First Amendment denial of right to
petition in refusing Plaintiffs access
to the grievance process regarding
Martinez-Ellis’s falsification of the
injection date.

Ross

Respondeat superior or vicarious
liability for actions of Martinez-
Ellis

Corizon

Respondeat superior or vicarious
liability for actions of Cunningham

Corizon

Case 2:22-cv-00152-NDF Document 47 Filed 10/20/22 Page 6 of 31

XI 42 U.S.C. § 1983 negligent training Corizon
and supervision of Martinez-Ellis to Dr. Johnson
maintain accurate medical records.” Koch

XU 42 U.S.C. § 1983 negligent training Corizon
and supervision of Cunningham to Dr. Johnson
maintain accurate medical records. Koch

XIV 42 U.S.C. § 1983 negligent training Shannon
and supervision of Martinez-Ellis Pacheco
and Cunningham to maintain
accurate medical records

The claims against the individual Defendants are in their individual capacities. ECF
33 ¥ 32.

The docket does not reflect a summons for Ms. Cunningham, nor a waiver of service
from her. She is therefore not yet in the case. The Court reviews the claims against Ms.
Cunningham pursuant to 28 U.S.C. § 1915A.

All Defendants except Cunningham filed a second round of motions to dismiss, now
directed to the amended complaint. ECF 36, 38, 42. Plaintiffs did not respond to these
motions, instead filing a motion to amend the amended complaint. ECF 40. The time for
responses to the motions to dismiss has passed, and the briefing is complete on all of the
pending motions.

II. Standard of Review

At this initial phase, the Court must take all well-pleaded factual allegations as true

and view those facts in the light most favorable to the plaintiff Robbins v. Oklahoma, 519

2 Counts XII, XII, and XIV do not specify which constitutional right Plaintiffs invoke. As these claims
specifically refer to a failure to train or supervise regarding the need to maintain accurate medical records,
it appears these claims allege violations of the Fourteenth Amendment substantive due process right to
accurate medical records.

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F.3d 1242, 1247 (10th Cir. 2008). Dismissal is proper if, taking those facts as true, the
plaintiff has failed to present a plausible right to relief. Jd. See also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The burden
is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to
suggest’ that he or she is entitled to relief.” Robbins, 519 F.3d at 1247 (quoting Twombly,
550 U.S. at 556). “A plaintiff must nudge his claims across the line from conceivable to
plausible in order to survive a motion to dismiss.” Khalik vy. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (internal citation and quotation marks omitted, citing
Twombly, 550 U.S. at 570). “Thus, mere ‘labels and conclusions’ and ‘a formulaic
recitation of the elements of a cause of action’ will not suffice.” Jd. at 1191 (quoting
Twombly, 550 U.S. at 555). But “a well-pleaded complaint may proceed even if it strikes
a savvy judge that actual proof of the facts alleged is improbable and that a recovery is very
remote and unlikely.” Twombly, 550 U.S. at 556.

To state a claim — particularly a civil rights claim — the complaint must further
specify: “1) what each defendant did to [plaintiff]; 2) when the defendant did it; 3) how the
defendant’s actions harmed [plaintiff]; and 4) what specific legal right the plaintiff believes
the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).

These standards apply as well to the Court’s initial screening of the claims against
Cunningham under 28 U.S.C. § 1915A. That statute requires in relevant part that the Court

to review as soon as practicable whether prisoners’ claims are frivolous, malicious, or fail

Case 2:22-cv-00152-NDF Document 47 Filed 10/20/22 Page 8 of 31

to state a claim.? This is the same standard as for Rule 12(b)(6) motions, although “the fact
that a district court does not dismiss a complaint under § 1915A does not mean that the
complaint will necessarily withstand a defendant's challenge to its plausibility under Rule
12(b)(6).” Garewal v. Sliz, 611 F. App’x 926, 931 (10th Cir. 2015) (footnote omitted).

Meanwhile, Plaintiffs are pro se. The Court accordingly construes their pleading
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596
F.3d 1198, 1201 n.2 (10th Cir. 2010). If the Court “can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, [the court] should do so despite the
plaintiff's failure to cite proper legal authority, his confusion of various legal theories, ...
or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). But the Court cannot act as an advocate for pro se litigants. Id.

I. — Analysis
A, Motions to Dismiss

Plaintiffs did not respond to the motions to dismiss. Under Local Rule 7.1, failure
to file a response permits the Court to consider these motions conceded. However,

Plaintiffs’ note in their motion to amend that they seek to amend in response to the motions

3 Section 1915A regards prisoner claims (whether in forma pauperis or not) against governmental entities
or employees of officers thereof. While Cunningham is an employee of a private company (Corizon),
Corizon acts pursuant to contract with WDOC (as alleged in the Amended Complaint) as its agent for
healthcare to inmates including Plaintiffs. Plaintiffs allege Cunningham was acting under color of state law
in her role as acting Healthcare Services Administrator for Corizon at WMCI. For purposes of Section
1915A, the Court sees no effective difference between an employee of a governmental entity and an
employee of a contractor for a governmental entity acting under the color of state law. See, e.g., Wabuyabo
v. Correct Care Solutions, 723 F. App’x 642 (10th Cir. 2018) (affirming dismissal of prisoner claims against
private healthcare contractor on initial review under 28 U.S.C. § 1915A).

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to dismiss. On dispositive motions, courts also prefer to rule on the merits and not
procedural failures. The Court accordingly considers the merits of the motions to dismiss.

I, Res Judicata

All Defendants except Sergeant Ross argue that Plaintiffs’ claims are barred by res

4

judicata due to Chief Judge Skavdahl’s dismissal with prejudice of their claims in 21-cv-
139. “The preclusive effect of a federal-court judgment is determined by federal common
law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). “By precluding parties from contesting
matters that they have had a full and fair opportunity to litigate, these two doctrines protect
against the expense and vexation attending multiple lawsuits, conserve judicial resources,
and foster reliance on judicial action by minimizing the possibility of inconsistent
decisions.” Jd. (editing and quotation marks omitted).

[C]laim preclusion prevents parties from raising issues that could have been raised
and decided in a prior action—even if they were not actually litigated. If a later suit
advances the same claim as an earlier suit between the same parties, the earlier suit's
judgment prevents litigation of all grounds for, or defenses to, recovery that were
previously available to the parties, regardless of whether they were asserted or
determined in the prior proceeding. ... Suits involve the same claim (or “cause of
action”) when they arise from the same transaction.

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589, 1594-95,
206 L. Ed. 2d 893 (2020) (quotation and editing marks omitted).

We require defendants to prove three elements to prevail on this defense: (1) a [final]
judgment on the merits in an earlier action; (2) identity of parties or privies in the
two suits; and (3) identity of the cause of action in both suits. ...In addition, even if
these three elements are satisfied, there is an exception to the application of claim
preclusion where the party resisting it did not have a full and fair opportunity to
litigate the claim in the prior action.

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Johnson y. Spencer, 950 F.3d 680, 708 (10th Cir. 2020) (quotation marks and citations
omitted).

Here, there is no question that the January 2022 dismissal with prejudice of 21-cv-
139 is ajudgment on the merits. Judge Skavdahl addressed the merits of Plaintiffs’ federal
claims. Bird v. Martinez-Ellis, 582 F. Supp. 3d at 917-22. The identity of the cause of
actions also is plain, other than Count IX against Sergeant Ross. Regardless that Plaintiffs
focus here on the alleged falsification of the date in their consent forms, these claims arise
from the same administration of vaccine as the claims in 21-cv-139. It is also plain that
Plaintiffs here were also the plaintiffs in that case; they now sue a larger group of
defendants than just Martinez-Ellis and Pacheco, but federal law of preclusion has long
permitted different defendants to use the doctrine “defensively” (as Defendants do here) to
bar a plaintiff who lost in the earlier action from relitigating the transaction against them
too. See, e.g., Blonder-Tongue Lab’s, Inc. v. U. of Ill. Found., 402 U.S. 313, 323-25, 329,
349-50 (1971).4

However, Defendants do not brief whether the finality of the judgment in 21-cv-139
is affected for purposes of preclusion by Plaintiffs’ pending appeal and motion for relief
from the judgment. It appears the Tenth Circuit has not yet addressed this question for the
federal common law. In Ruyle v. Continental Oil Co., 44 F.3d 837, 845-46 (10th Cir.

1994), the Tenth Circuit held that a pending appeal did not affect the finality of an

4 “Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out
reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the
lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’” Blonder-Tongue, 402 U.S.
at 329 (quoting Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 185 (1952)).

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Oklahoma Corporations Commission decision for purposes of preclusion. But the court
did so based on an Oklahoma statute. Jd. The Restatement (Second) of Judgments § 13
notes “[t]here have been differences of opinion” on this issue, the “better view” is that a
pending appeal or motion for relief from judgment does not affect finality for purposes of
preclusive effect. Restatement (2d) of Judgments § 13 cmt. f. But the same comment also
states it may be appropriate to postpone deciding the issue until after the appeal or motion
for relief is concluded. Another leading treatise is similar. Wright & Miller, 18A Fed.
Prac. & Proc. Juris. § 4433 (3d ed.) (in federal preclusion law, it is an established rule that
“a final judgment retains all of its res judicata consequences pending decision of the
appeal,” but also suggests that federal courts should postpone deciding preclusive effect
until a pending appeal is decided).

In this case, given the strength of Defendants’ other arguments for dismissal, the
Court declines to reach whether the dismissal of 21-cv-139 should be treated as final for
purposes of res judicata.

2. Failure to Exhaust Administrative Remedies

All Defendants except Ross next argue that Plaintiffs’ federal claims are barred
because they did not fully exhaust the available administrative remedies. “No action shall
be brought with respect to prison conditions under section 1983 of this title ... by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C § 1997e(a) (part of the Prison Litigation Reform
Act, “PLRA”). “Requiring exhaustion allows prison officials an opportunity to resolve
disputes concerning the exercise of their responsibilities before being haled into court. This

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has the potential to reduce the number of inmate suits, and also to improve the quality of
suits that are filed by producing a useful administrative record.” Jones v. Bock, 549 U.S.
199, 204 (2007). “There is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.” Jd. at 211. However, administrative
exhaustion is an affirmative defense and thus Defendants bear the burden of raising the
issue. It is not a pleading requirement for prisoners’ complaints. Jd. at 212.

The “level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system,” but “it is the prison’s requirements. ..that
define the boundaries of proper exhaustion.” Jennings v. Dowling, 642 F. App’x 908, 911
(10th Cir. 2016) (quoting Jones, 549 U.S. at 218). “[T]he doctrine of substantial
compliance does not apply.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
Accordingly, failure to complete the grievance process results in the claims being barred.

Here, pursuant to Wyoming Department of Corrections’ Policy No. 3.100 the
grievance process begins with a Form #320, Inmate Communication Form to the
appropriate staff; if that does not resolve the issue, the inmate must submit a Form #321,
Inmate Grievance Form to the grievance manager (here, Sergeant Ross). ECF 27-6 (exhibit
to Defendants’ first motion to dismiss) at 21. Ifthe inmate is still not satisfied, the inmate
files a Form #322, Inmate Grievance Appeal Form for the Warden to review the response
to the grievance. Id. at 24. If they are still unsatisfied, the inmate files a second Form
#322, this time addressed to the WDOC Director. Jd. at 29. The grievance must “include
a simple and straightforward summary of the incident or occurrence giving rise to the

grievance or reason for the grievance and a requested grievance resolution or remedy.” Id.

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at 21 4 H.l.iv. Grievances must be submitted within thirty days of the conduct to be
grieved. Jd. at p. 21 9 H.1 tit.

The amended complaint alleges the grievance procedures Plaintiffs used regarding
(1) the alleged falsification of their consent forms and (2) the inaccuracy of their medical
records generally. In chronological order, Plaintiffs allege that “on June 18, 2021, Mr. Bird
... submitted a WDOC Inmate Communication Form to the Medical Supervisor at the
WMCI [Cunningham] regarding the inclusion of John Doe's medical records within Mr.
Bird's medical records.” ECF 33 § 100. Cunningham responded that she was reviewing
the records. “[O]n June 29, 2021, Mr. Bird submitted a follow up WDOC Inmate
Communication Form to Ms. Cunningham regarding the issues with his medical records.”
Id. § 104. “In a written response to Mr. Bird's June 29, 2021, WDOC Inmate
Communication Form, Ms. Cunningham noted in writing that Corizon's HIPAA
Department had been notified about the issue with the medical records and that Mr. Bird's
record was being corrected.” Id. § 109. “[A]s of September 9, 2021, Mr. Bird's medical
record still contained a four-page entry dated October 14, 2020, ie. a ‘Coronavirus
(COVID-19) Screening Form 2020,’ that actually belongs to John Doe.” Jd. ¥ 110.

“Upon confirming that the retrospective falsification of the injection date by Ms.
Martinez was no accident or mistake, but rather a deliberate, intentional, purposeful,
malicious, and criminal act, the Plaintiffs immediately submitted Inmate Communication
Forms to the WMCI Medical Supervisor, Ms. Cunningham, on April 18, 2022, and April
20, 2022, demanding that their medical records be corrected ... due to the misconduct of

Ms. Martinez.” Jd. § 122. “After not receiving any response to their respective Inmate

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Communication Forms from Ms. Cunningham, the Plaintiffs each submitted Inmate
Grievance Forms to Sergeant Ross on May 3, 2022, and May 5, 2022, also demanding that
their medical records be corrected ... due to the misconduct of Ms. Martinez.” Jd. § 125.
Ross allegedly returned the forms to Plaintiffs noting “the issue happened in 2021, or more
than 30 days ago, and that the issue is in litigation at this time.” Jd. | 126.

“Additionally, Director Shannon has deliberately, intentionally and purposefully
fabricated and espoused lies about the unavailability of the ‘manufacturer specific COVID-
19 Vaccine Fact Sheet’ for the Janssen Vaccine at the WMCI and that the Patient Consent
Form was the same at all WDOC facilities.” Id. 9 138. “[T]he WDOC grievance process
operates as a simple dead end — with officers unable or consistently unwilling to provide
any relief to aggrieved inmates. The very fact that Director Shannon would knowingly,
intentionally and purposefully lie within grievance appeal responses in the first instance
indicates that the WDOC grievance process is an absolute dead end.” Jd. ¥{ 148-49
(quotation marks omitted).

Thus, with respect to their claims alleging falsification of the vaccine consent forms,
Plaintiffs do not allege they exhausted the grievance process. First, even if they were
unaware of the alleged falsification until the January 2022 dismissal of 21-cv-139, they
still did not file their grievance forms until April 2022: more than 30 days after they allege
they first became aware. Although Plaintiffs allege they then undertook an investigation
of the date on other inmates’ consent forms, Plaintiffs do not allege why they waited until
their complaint in that case was dismissed. The Court takes judicial notice that Plaintiffs

filed their vaccine consent forms (with the March 31, 2021 date) in 21-cv-139 on

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November 24, 2021. See 21-cv-139, ECF 15-2, 15-3, and 15-4. Even if their initial
grievance forms on the alleged falsification were timely, Plaintiffs also did not complete
either the first or second appeals required by the process. Rather, they allege the process
is a dead-end and that Director Shannon lied in his decision of their earlier grievance appeal
regarding the informed consent issue. These allegations lead to only one reasonable
inference: that Plaintiffs did not complete the internal appeal process. Plaintiffs cannot
avoid the PLRA bar by failing to avail themselves of the administrative procedures required
in the WDOC policy. The federal claims regarding the alleged falsification of Plaintiffs’
vaccine consent forms are barred. Those claims are Counts I, III, XII, and XIV.

Plaintiffs’ claims alleging inaccuracy of their medical records in other ways are also
barred. First, the amended complaint alleges only Mr. Bird filed a grievance on this issue.
Plaintiffs Brown and Dague did not file any grievances on it. Even assuming they simply
did not allege those facts, they also did not respond to Defendants’ motion that raises this
issue. Bird also does not allege that he completed the appeal process for this grievance.
Again, the amended complaint’s assertions that the process is a dead-end leave only the
inference that Plaintiffs chose not to appeal the response (or lack thereof) to their
grievances. Accordingly, Plaintiffs’ federal claims alleging a violation of a right to
accurate medical records are barred. These claims are Counts II and XIII.

Finally, Plaintiffs’ Count IX is also barred for failure to exhaust. This claim asserts
that Sergeant Ross denied Plaintiffs the right to use the grievance process regarding the
alleged falsification of their vaccine consent forms. Plaintiffs do not allege that they filed

or appealed grievances regarding this issue. Again, the allegations of the grievance process

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being a dead-end, particularly because the Director allegedly lied in response to the
“informed consent” appeal — lead to only one reasonable inference: that Plaintiffs did not
complete the grievance and internal appeal process with regard to their claim against
Sergeant Ross. Count IX is accordingly barred.

In short, all of the federal claims are barred for failure to exhaust administrative
remedies.

3. Plaintiffs’ Federal Claims also Fail on the Merits

Even if the claims were not barred, they do not state claims for relief upon which
relief may be granted. The First Amendment retaliation claim against Martinez-Ellis
requires Plaintiffs to plausibly allege facts to support among other things “that the
defendant’s actions caused the plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity.” Shero v. City of Grove, 510
F.3d 1196, 1203 (10th Cir. 2007). “[T]rivial or de minimis injury will not support” the
claim. Id. Plaintiffs allege there was a risk that healthcare providers could have relied on
the wrong injection date, and that they suffered headaches, indigestion, and the like from
the stress of discovering Martinez allegedly intentionally falsified the injection date. But
they do not allege any actual injury, and their physical complaints are de minimis. They
do not plausibly allege First Amendment retaliation against Martinez-Ellis.

Second, the Fourteenth Amendment substantive due process claim alleges that
Plaintiffs, as inmates of a state prison receiving medical care therein have a right to accurate

records of that treatment.

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Our prior cases have held the provision that “[n]o State shall ... deprive any person

of life, liberty, or property, without due process of law,” U.S. Const., Amdt. 14, §

1, to guarante[e] more than fair process ... and to cover a substantive sphere as well,

barring certain government actions regardless of the fairness of the procedures used

to implement them.
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (internal quotation marks and
citation omitted, quoting inter alia Daniels v. Williams, 474 U.S. 327, 331 (1986)).

“One strand of the substantive due process doctrine protects an individual's
fundamental liberty interest, while the other protects against the exercise of governmental
power that shocks the conscience.” Carrier v. Lundstedt, No. 13-CV-02933-PAB-CBS,
2014 WL 8103198, at *5 (D. Colo. Dec. 22, 2014), report and rec. adopted, 2015 WL
1041835 (D. Colo. Mar. 4, 2015) (quoting Seegmiller v. Laverkin City, 528 F.3d 762, 767
(10th Cir. 2008)). The two strands “are not mutually exclusive, however. Courts should
not unilaterally choose to consider only one or the other of the two strands. Both approaches
may well be applied in any given case.” Seegmiller, 528 F.3d at 769.

Plaintiffs do not appear to rely on the first strand, which historically regards the
rights to bodily integrity and freedom from bodily restraint. See, e.g., Reno v. Flores, 507
U.S. 292 (1993); Foucha v. Louisiana, 504 U.S. 71, 80 (1992), and Washington v. Harper,
494 U.S. 210 (1990). Each of those cases involved purposeful confinement of or intrusion
into the body by the governmental actor. This leaves the second strand. This type of claim
requires “an abuse of executive power so clearly unjustified by any legitimate objective of
[the governmental actor] ... as to be barred by the Fourteenth Amendment.” Lewis, 523

U.S. at 840. The Court has “always been reluctant to expand the concept of substantive

due process.” Id. at 842. It is “intended to secure the individual from the arbitrary exercise

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of the powers of government, unrestrained by the established principles of private right and
distributive justice.” Id. at 845 (quoting Hurtado v. California, 110 U.S. 516, 527 (1884)).
“Our cases dealing with abusive executive action have repeatedly emphasized that
only the most egregious official conduct can be said to be arbitrary in the constitutional
sense, ... thereby recognizing the point made in different circumstances by Chief Justice
Marshall, that it is a constitution we are expounding.” Jd. at 846 (internal quotation marks
omitted). “[T]he cognizable level of executive abuse of power [actionable for substantive
due process is] that which shocks the conscience.” Jd. at 846. “While the measure of what
is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, ‘poin[t]
the way.’” Id. at 847 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert.
denied, 414 U.S. 1033 (1973)).
[C]onscience shocking duplicates no traditional category of common-law fault, but
rather points clearly away from liability, or clearly toward it, only at the ends of the
tort law's spectrum of culpability. Thus, we have made it clear that the due process
guarantee does not entail a body of constitutional law imposing liability whenever
someone cloaked with state authority causes harm.
Lewis, 523 U.S. at 848. Negligence is categorically below substantive due process
protection. Id. at 849. “It is ... behavior at the other end of the culpability spectrum that
would most probably support a substantive due process claim; conduct intended to injure
in some way unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level.” Id.
The question is whether the defendant’s conduct “shocks the conscience of federal

judges, not juries. Whether specific conduct shocks the conscience is a question of law for

the court.” Carrier, 2014 WL 8103198, at *5 (internal citation omitted, citing Graves v.

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Thomas, 450 F.3d 1215, 1220 (10th Cir. 2006)). The Court must also “bear in mind three
basic principles highlighted by the Supreme Court in evaluating substantive due process
claims: (1) the need for restraint in defining their scope; (2) the concern that § 1983 not
replace state tort law; and (3) the need for deference to local policymaking bodies in
making decisions impacting upon public safety.” Hernandez v. Ridley, 734 F.3d 1254,
1261 (10th Cir. 2013).

Here, Plaintiffs allege their medical records are inaccurate due to other inmates’
treatment being mistakenly noted in the wrong files, errors in the notes of treatment they
received, and in Bird’s instance errors in diagnosis of his dental issue. The only deliberate
conduct they assert is that of Martinez-Ellis allegedly falsifying the date on their vaccine
consent forms. All other Defendants simply refused to step in and change the information
in Plaintiffs’ medical records or to require their subordinates to do so. None of the alleged
conduct rises to a level that shocks the conscience. Assuming as Plaintiffs allege that
Martinez-Ellis intentionally wrote a later date on their consent forms because they had filed
grievances regarding the lack of informed consent to the Janssen vaccine, this does not
infer “conduct intended to injure” Plaintiffs. At the time Plaintiffs allege Martinez-Ellis
did so— April 10, 2021 — three weeks had gone by and Plaintiffs do not allege they had any
side effects from the vaccine. Rather, the allegation supports only conduct intended to
avoid Plaintiffs’ grievances and the possibility of litigation. Accordingly, Count IT fails to

state a claim against any Defendant.

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The Eighth Amendment claim against Martinez-Ellis (Count IID requires Plaintiffs
to plausibly allege deliberate indifference to a serious medical need. Estelle v. Gamble,
429 US. 97, 104-105 (1976).

To state a cognizable Eighth Amendment claim, “a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.” [Estelle, 429 U.S.] at 106... The deliberate indifference test involves
an objective and a subjective component. ...The objective component requires the
plaintiff to allege the deprivation at issue was sufficiently serious. ... That is, the
defendant's actions “must result in the denial of the minimal civilized measure of
life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 ... (1994) (quotation
omitted). The subjective component requires the prisoner to allege the official was
deliberately indifferent to a serious medical need. Jd. A plaintiff sufficiently alleges

a culpable mindset when the facts alleged show a prison 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.” Jd. at 837.

Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir. 2020).

Here, Plaintiffs do not allege actions or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. As noted above, headaches, indigestion,
and the like are de minimis harms. Three weeks had passed since they received the vaccine
and they do not allege they have experienced any side effects from the vaccine. Given
these fact allegations, they fail to plausibly allege that Martinez-Ellis falsified the injection
dates knowing of an excessive risk to their health or safety in doing so. Count III
accordingly fails to state a claim.

The federal claims asserting supervisory and entity liability for Martinez and
Cunningham’s actions — Cunningham allegedly failing to correct the inaccuracies in Bird’s

medical records — likewise fail to state claims. As to the State, Director Shannon, Warden

Pacheco, Sergeant Ross, and Ms. Koch, Plaintiffs fail to plausibly allege personal
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participation by these Defendants. Supervisors are not liable in Section 1983 actions unless
they personally participate in the alleged constitutional harm with the requisite state of
mind. Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (citing Ashcroft v. Iqbal,
556 U.S. 662 (2009)). See also Walker, 947 F.3d at 1250 (claim failed for lack of personal
involvement of the defendant); Bird v. Lampert, 839 F. App’x 218, 222 (10th Cir. 2020).
Even if Plaintiffs alleged any of these Defendants were personally involved (as supervisors
or final policy makers) in either Martinez-Ellis’s alleged falsification or the inaccuracy of
Plaintiffs’ medical records, Plaintiffs do not allege facts to support they acted with
deliberate indifference to an excessive risk to Plaintiffs’ health or safety. Counts XII, XIII
and XIV fail to state claims.

Finally, Count IX against Sergeant Ross fails because “his mere response and denial
of [Plaintiffs’] grievance[s] are insufficient to establish the requisite personal participation
under § 1983.” Requena v. Roberts, 893 F.3d 1195, 1216 (10th Cir. 2018). Plaintiffs allege
Ross denied them access to the grievance process, but the only conduct they identify for
this claim is his denial of their grievances.> Accordingly, Count IX fails to state a claim.

4, State Law Claims

Defendants seek dismissal with prejudice of Plaintiffs’ state law claims as well. The
Court “may decline to exercise supplemental jurisdiction over a claim under subsection (a)
[of Section 1367] if ... the district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c). “The Supreme Court has encouraged the practice of

5 Tt also bears noting that the proposed second amended complaint would drop Sergeant Ross as a defendant.

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dismissing state claims or remanding them to state court when the federal claims to which
they are supplemental have dropped out before trial.” Barnett v. Hall, Estill, Hardwick,
Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020). The Tenth Circuit
“has followed suit when the claims over which the district court had original jurisdiction
are dismissed on pretrial motion.” Jd. This is because “in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims” Id.
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

In this case, the Court declines to retain jurisdiction of the state law claims and
remands them to the Eighth Judicial District Court, Goshen County. The case has been in
this Court for only three months. Although the Court had to invest significant resources to
address the federal claims, it has not invested resources in the state law claims. Defendants
assert that Plaintiffs would not be able to pursue this action in state court either — because
they have improperly split these claims from the claims they bring in Civil Action No.
2021-00049 (also in the Eighth Judicial District). But the parties will be able to bring that
issue before the state court, which is the most appropriate tribunal to determine that
question.

B. Motion to Amend

Plaintiffs move for leave to file a second amended complaint. ECF 40. Leave to
amend should be given freely “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The
Tenth Circuit has adopted a liberal standard when determining whether leave to amend a

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pleading should be given. Martinez v. Cornell Corr. of Tex., Inc., 229 F.R.D. 236, 238
(D.N.M. 2005) (citing Calderon v. Kan. Dep’t of Soc. and Rehab. Servs., 181 F.3d 1180,
1185-86 (10th Cir. 1999)). This liberal policy of granting motions to amend reinforces the
basic principle that a plaintiff’s claim is best decided on its merits, rather than upon
procedural niceties. Id; Foman v. Davis, 371 U.S. 178, 181-82 (1962). “In light of our
liberalized pleading rules, plaintiffs generally should not be prevented from pursuing a

9

claim merely because the claim did not appear in the initial complaint.” Alpenglow
Botanicals, LLC v. United States, 894 F.3d 1187, 1203 (10th Cir. 2018), cert. denied, 139
S. Ct. 2745 (2019) (internal quotation marks omitted).

Notwithstanding the liberal amendment policy of the Tenth Circuit, a court may
deny leave to amend for reasons such as “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
[or] futility of amendment[.]” Foman, 371 U.S. at 182. “The non-moving party bears the
burden of showing that the proposed amendment is sought in bad faith, that it is futile, or
that it would cause substantial prejudice, undue delay or injustice.” Corp. Stock Transfer,
Inc. v. AE Biofuels, Inc., 663 F. Supp. 2d 1056, 1061 (D. Colo. 2009) (internal quotations
and citations omitted). The decision of granting leave to amend is vested soundly within
the discretion of the trial court. Alpenglow Botanicals, 894 F.3d at 1203.

Plaintiffs explain the proposed amendment would:

(1) Reflect email correspondence et cetera that WDOC or the Wyoming Department

of Health produced shortly after Plaintiffs filed the first amended complaint. Plaintiffs

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believe the correspondence shows that Corizon staff knew ahead of time that they were
going to administer the Janssen vaccine, that Janssen consent forms were available at the
time, and Director Shannon lied in his response(s) to grievance appeals regarding Plaintiffs
having been given the Janssen vaccine.

(2) Address the Defendants’ argument that they failed to exhaust their
administrative remedies by alleging that Plaintiffs believe the grievance process is a dead-
end because Director Shannon lied in deciding their grievance appeals on the informed
consent issue.

(3) Address that Martinez-Ellis, Pacheco, and their counsel of record “played rather
fast and loose with the ‘judicial machinery’” in a filing in 21-cv-139, lying by omission to
Judge Skavdahl, and that Judge Skavdahl erred in his order denying the motion to alter or
amend judgment.

Finally, although Plaintiffs did not note it in their motion, the proposed second
amended complaint would also add a new defendant (Deputy Warden Marlena McInnis)
in place of the Jane Doe defendant and would drop Sergeant Ross as a defendant. Ross
therefore does not oppose the amendment. He instead requests that if the Court allows the
amendment that it also issue an order for clarity’s sake noting that he is dropped as a
defendant. ECF 42.

Plaintiffs’ proposed amendment would be futile. As to category one, Plaintiffs
already allege these facts on information and belief in the amended complaint. The details
of the emails (of which there appear to be only two in the proposed amendment) do not add

anything significant to whether Plaintiffs fail to state claims for relief. Likewise, for

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category two, Plaintiffs already allege those assertions. ECF 33 { 149. In the Court’s
review (which included generating a redline), Plaintiffs do not propose to add any new
allegations relating to administrative exhaustion. And category three is a matter to take up
with Judge Skavdahl in 21-cv-139, if at all. It also appears that Plaintiffs propose to omit
many of the amended complaint’s allegations about this issue. The proposed second
amended complaint does not appear to propose any new allegations about 21-cv-139 or
filings therein.

Because none of the proposed amendments cure the lack of administrative
exhaustion or the failure to plausibly allege elements of the claims, the proposed second
amended complaint would be futile. Plaintiffs’ motion to amend (ECF 40) is accordingly
DENIED. Defendant Ross’s alternative motion to dismiss (ECF 42) is terminated as moot,
as the Court is granting his first motion to dismiss.

Cc Show Cause Order as to Plaintiff Chester Bird

The court sua sponte takes judicial notice of several facts from its records and
publicly available records of the Tenth Circuit Court of Appeals and the Wyoming
Supreme Court.

Since his conviction in 1994, Mr. Bird has been a plaintiff or petitioner in 25 civil
cases in this Court, not counting the present one which is here on removal.® Twelve were

civil actions and thirteen were habeas petitions. Bird is subject to what is known as the

6 The Court’s records group Mr. Bird’s cases by Chester Loyde Bird as a plaintiff in 94-cv-233, 94-cv-248,
95-cv-15, 95-cv-122, and 95-cv-184; Chester L. Bird as a plaintiff in 17-cv-87, 17-cv-198, 20-cv-26, 20-
cv-37, 20-cv-42, 20-cv-49, and 21-cv-139; Chester Loyde Bird as a petitioner in 94-cv-264, 95-cv-44, 95-
cv-216, 96-cv-173, and 98-cv-183; and Chester L. Bird as a petitioner in 08-cv-200, 09-cv-133, 15-cv-153,
16-cv-320, 17-cv-27, 17-cv-53, 17-cv-111 and 22-cv-174.

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“three strikes” rule of 28 U.S.C. § 1915(g). See, e.g., Bird v. Lampert, 17-cv-198-ABJ,
ECF 6 (D. Wyo. Nov. 30, 2017) (noting that Bird reached his allotted three strikes in cases
94-cy-233-D, 95-cv-015-B, and 94-cv-248-J).’ Thus, Bird has long been subject to Section
1915(g)’s filing restrictions, in that he cannot file in forma pauperis (“IFP”) unless he
makes “specific, credible allegations of imminent danger of serious physical harm.” Hafed
y. Federal Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011).8 He also has long
been subject to 28 U.S.C. § 2244’s requirement of pre-approval from the Tenth Circuit for
any second or successive habeas petitions.

But the existing filing restrictions have had little to no effect on Bird’s filing of non-
meritorious civil actions in this Court. He has never obtained a judgment in his favor in
any civil action in this court. To the contrary, ten of Bird’s twelve prior civil actions in
this Court have been dismissed at the Rule 12 phase — most of them specifically as
“frivolous, malicious, or [for] fail[ing] to state a claim upon which relief may be granted,”

the criteria of Section 1915(g).° Bird’s civil rights claims have survived Rule 12 motions

7 The referenced actions of 1994 and 1995 predate the adoption of Section 1915(g), but Bird has also
accrued many other strikes against him under § 1915(g).

8 In 95-cy-122, the docket also reflects that the Court permitted Bird to proceed IFP but required any further
proceedings must be specifically authorized in advance by the Court (ECF 4, order of June 23, 1995).

9 Bird’s civil rights actions in this Court dismissed with prejudice or found frivolous or failing to state a
claim: 94-cy-233, 94-cv-248, 95-cv-15; Bird v. Wyoming Supreme Court, 95-cv-122-ABJ; Bird v. Easton,
20-cv-26-SWS, ECF 15 (Order of September 4, 2020, granting motion to dismiss based on qualified
immunity), aff'd, No. 20-8061, 859 F. App’x 299 (Mem) (10th Cir. June 11, 2021); Bird v. Wyoming
Attorney General, 20-cv-37-F, ECF 9 (Order of June 2, 2020, granting motion to dismiss based on res
judicata), aff'd sub nom., Bird v. Hill, No. 20-8035, 857 F. App’x 434 (Mem) (10th Cir. May 21, 2021);
Bird v. Martinez-Ellis, 21-cv-139-SWS, ECF 28 (Order of January 31, 2022, granting motion to dismiss
for failure to state a claim and based on qualified immunity), appeal pending.

Bird’s civil rights actions in this Court dismissed without prejudice: 95-cv-184, dismissed without
prejudice and denied IFP; 17-cv-198-J, dismissed on Bird’s motion after his motion for IFP was denied;
20-cv-42, Bird v. Wyoming Attorney General, dismissed without prejudice for lack of standing.

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in only two cases. In both instances, his claims were denied on summary judgment. 10 And
each of Bird’s thirteen habeas petitions in this Court were either dismissed or denied.’
Bird has also appealed, sought certificates of appealability, or sought permission to
file a second or successive habeas petition at least fifteen times from the Tenth Circuit.’
Westlaw also reflects that Bird has obtained seven opinions from the Wyoming Supreme
Court — not including his appeal from his criminal convictions — and none of those opinions
appear to rule even partially in his favor.'? In addition, some of the published cases reflect
that at times WDOC has transferred Bird to other states for incarceration. The Court has

not attempted to track whether Bird also filed civil actions or habeas petitions outside of

this Court, the Tenth Circuit and the Wyoming Supreme Court.

10 See 17-cv-87-SWS, (ECF 306, judgment; ECF 318, dismissing state law claim without prejudice); 20-
cv-49-SWS, Bird v. Moss (ECF 223, order granting summary judgment to the defendant).

1 Bird’s habeas petitions in this Court are: 94-cv-264-B, dismissed for failure to exhaust state court
remedies; 95-cv-44-B, dismissed for failure to exhaust state court remedies; 95-cv-216-B, dismissed
(reason not stated in docket entry); 96-cv-173-B, dismissed for failure to exhaust state court remedies; 98-
cv-183-D, denied, aff'd, Bird v. Everett, 215 F.3d 1336 (Table), 2000 WL 717089 (10th Cir. June 2, 2020);
08-cv-200-D, denied, cert. of appealability (“COA”) denied, Bird v. LeMaitre, 371 F. App’x 938 (10th Cir.
2010); 09-cv-133-B, denied, COA denied, Bird v. Wilson, 371 F. App’x 941 (10th Cir. 2010); 15-cv-153-
F, dismissed, COA denied, Bird v. Wilson, 647 F. App’x 891 (10th Cir. 2016); 16-cv-320-F, dismissed
without prejudice, COA denied, Bird v. Wyoming Atty. Gen., 779 F. App’x 546 (10th Cir, 2019); 17-cv-27-
F, dismissed without prejudice, COA denied, Bird v. Wyo. Dept. of Corr. State Pen. Warden, 693 F. App’x
762 (10th Cir. 2017); 17-cv-53-J, dismissed with prejudice, COA denied, Bird v. Pacheco, 729 F. App’x
627 (10th Cir. 2018); 17-cv-111-F, dismissed without prejudice, COA denied, Bird v. Wyo. Dept. of Corr.
State Pen. Warden, 697 F. App’x 613 (10th Cir. 2017); 22-cv-74, dismissed without prejudice.

2 As of this filing date, Westlaw reflects fifteen Chester Bird rulings from the Tenth Circuit. Only one of
those decisions reversed the district court’s decision in part, and then the partial reversal was only to require
remand of a state law claim to state court (or dismissal without prejudice) instead of dismissing the claim
as duplicative. Bird v. Lampert, 839 F. App’x 218 (10th Cir. Dec. 15, 2020).

3 See Bird v. State, 939 P.2d 735 (Wyo. 1997) (second motion to withdraw guilty pleas); Bird v. Rozier,
948 P.2d 888 (Wyo. 1997) (civil action); Bird v. State, 39 P.3d 430 (Wyo. 2002) (motion to correct
sentence); Bird v. State, 356 P.3d 264 (Wyo. 2015) (second motion to correct sentence); Bird v. Wyo. Bd.
of Parole, 382 P.3d 56 (Wyo. 2016) (civil action); Bird v. Lampert, 441 P.3d 850 (Wyo. 2019) (civil action);
Bird v. Lampert, 479 P.3d 382 (Wyo. 2021) (civil action).

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“The right of access to the courts is neither absolute nor unconditional.” Crownhart
v. Buck, 20-1410, 2021 WL 4595169, at *3 (10th Cir. Oct. 6, 2021) (quoting Winslow v.
Hunter (In re Winslow), 17 F.3d 314, 315 (10th Cir. 1994) (per curiam)). “Federal courts
have the inherent power to regulate the activities of abusive litigants by imposing carefully
tailored restrictions under appropriate circumstances.” Jd. (quoting Ysais v. Richardson,
603 F.3d 1175, 1180 (10th Cir. 2010)). See also Jiron v. Colorado, 343 F. App’x 296, 297
(10th Cir. 2009).

Filing restrictions are appropriate where the litigant's lengthy and abusive history is

set forth; the court provides guidelines as to what the litigant may do to obtain its

permission to file an action; and the litigant receives notice and an opportunity to
oppose the court's order before it is implemented.
Crownhart, 2021 WL 4595169, at *3 (10th Cir. Oct. 6, 2021). The Court also has authority
in appropriate circumstances to impose monetary sanctions. See, e.g., Van Sickle v.
Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986) (imposing monetary sanction and filing
restriction).

Although “litigiousness alone is not a sufficient reason to restrict access to the
court,” “abusive and repetitive filings” that strain the resources of the Court will support
further filing restrictions. In re Winslow, 17 F.3d at 315. For instance, in Jiron, the pro se
prisoner had filed nineteen civil actions in the district court when it imposed filing
restrictions requiring him to obtain the court's prior approval — based on information
required in the sanction order — before filing further pro se civil complaints. The Tenth

Circuit found no error when the district court dismissed the plaintiff's unapproved pro se

action. In Winslow, the Tenth Circuit found that where pro se litigants brought

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substantially similar allegations in seventeen actions and ignored admonitions to follow the
court's local rules, it was appropriate to restrict the litigants from filing further pro se
actions unless they first obtained the court's approval. Winslow, 17 F.3d at 316. In
Crownhart, the pro se litigant’s abusive filings that led the district court to prohibit any
further pro se proceedings included eighteen habeas petitions and seventeen complaints.
Crownhart v. Suthers, 531 F. App’x 906 (10th Cir. 2013). The filing restrictions applied
to both habeas petitions and civil rights actions.

In this case, Bird has filed in this Court ten civil actions that failed on Rule 12
motions (not counting the present case), two civil actions failing on summary judgment,
and thirteen failed habeas petitions. Again, none of his civil proceedings in this Court have
resulted in a judgment even partially in his favor. Despite orders of this Court making him
well aware of the requirement to exhaust state court remedies before seeking habeas relief
in this Court, he continued to file habeas petitions that did not meet that requirement.
Despite being made fully aware that res judicata includes any claims that could have been
brought in a prior action (see, e.g., 20-cv-37), the present case demonstrates that he
continues to file multiple actions (whether in this Court or state court) arising from the
same transaction. And despite being likewise fully aware that Section 1983 claims require
personal participation of the individual defendant (see above), Bird continues to sue state
prison officials and Corizon employees without plausibly alleging their personal
involvement and requisite level of intent. His meritless civil actions and habeas petitions

have unnecessarily strained the resources of this Court.

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Bird has two weeks from the filing of this order in which to SHOW CAUSE why
this Court should not (1) find he has demonstrated a pattern of litigation activity that is
manifestly abusive and (2) impose further filing restrictions prohibiting him from filing
any further pro se litigation — civil actions or habeas proceedings — absent the Court’s prior
approval. The Court proposes to include in the filing restrictions that it will only approve
further pro se civil actions by Bird if he makes (a) specific, credible allegations of imminent
danger of serious physical harm; (b) specific, credible allegations that he has exhausted all
available administrative remedies; and (c) a notarized affidavit that the complaint complies
with Federal Rule of Civil Procedure 11. The Court will only approve further pro se habeas
petitions if Bird presents an order from the Tenth Circuit under 28 U.S.C. § 2244 permitting
him to file a second or successive petition, pays the filing fee, uses a Court-approved form
of habeas petition, alleges all facts necessary to determine whether the petition is timely
under 28 U.S.C. § 2244(d), and includes a notarized affidavit that the petition is not
presented for any improper purpose, including harassment. Any complaints or petitions
that do not meet these requirements will be summarily dismissed.

IV. Conclusion

Consistent with the foregoing, the Court GRANTS the Defendants’ motions to
dismiss (ECF 36 and 38). Defendant Ross’s alternative motion (ECF 42) is terminated as
moot. The Court finds on initial review that the federal claims against Defendant
Cunningham fail to state a claim. All of Plaintiffs’ federal law claims against all

Defendants (Counts I, Il, Il, IX, XI, XII and XIV) are DISMISSED WITH

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PREJUDICE." Plaintiffs’ state law claims (Counts IV, V, VI, VII, VIII, X, and XI) are
remanded to the Eighth Judicial District Court, Goshen County.

Plaintiffs’ motion to amend (ECF 40) is DENIED.

Plaintiff Bird shall SHOW CAUSE within two weeks of the filing of this order why
the Court should not make the findings and impose the filing restrictions stated in Section
II1.C. Judgment shall not enter pending the Court’s resolution of this show cause order.

Dated this 20th day of October, 2022.

NANCY D. FREUDENTHAL
UNITED STATES SENIOR DISTRICT JUDGE

\4 The Court may sua sponte dismiss a pro se complaint without leave to amend “when it is ‘patently obvious
that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his
complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

31