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

                       FOR THE TENTH CIRCUIT                      October 24, 2017
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
JASON BROOKS,

       Plaintiff - Appellant,

v.                                                 No. 16-1469
                                          (D.C. No. 1:13-CV-02894-CBS)
COLORADO DEPARTMENT OF                              (D. Colo.)
CORRECTIONS; DAVID OBA;
PATRICK BLAKE; ANGIE
TURNER; CORRECTIONS
CORPORATION OF AMERICA;
DEBRA FOSTER; JULIE
RUSSELL; KATHY HOWELL;
TIMOTHY CREANY; DAVID
TESSIERE; DOLORES MONTOYA;
TRUDY SICOTTE; LOU
ARCHULETTA,

       Defendants - Appellees.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
                _________________________________


*
      Oral argument would not materially help us to decide this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we are deciding the
appeal based on the briefs.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
      This appeal arises out of a suit by a state prisoner, Mr. Jason Brooks,

afflicted with ulcerative colitis and a painful tooth. Unhappy with his

medical treatment, meal access, and allotment of toilet paper, Mr. Brooks

has sued the state department of corrections, some of its employees, the

owner of a private prison, and some of the owner’s employees. The suit

includes (1) claims under Title II of the Americans with Disabilities Act

for failure to accommodate a disability and (2) claims under 42 U.S.C.

§ 1983 for violation of the Eighth Amendment. The district court

           dismissed Mr. Brooks’s claims under Title II of the Americans
            with Disabilities Act and

           granted summary judgment to the defendants on the remaining
            § 1983 claims.

In addition, the district court struck Mr. Brooks’s requests for partial

summary judgment.

      We affirm in part and reverse in part.

I.    Mr. Brooks’s Requests for Partial Summary Judgment

      When responding to the defendants’ summary judgment motions, Mr.

Brooks requested partial summary judgment for himself. The district court

struck these requests because they were late and violated a local rule

prohibiting parties from including motions in the body of response briefs.

D. Colo. L. Civ. R. 7.1(d). The district court did not err in striking the

requests on these grounds.



                                       2
II.   The Defendants’ Motion to Dismiss: Claims Under the Americans
      with Disabilities Act

      The district court dismissed the claims under Title II of the

Americans with Disabilities Act against the Colorado Department of

Corrections, Ms. Russell, Ms. Howell, and Mr. Tessiere. We affirm the

dismissal of the Title II claims against Ms. Russell, Ms. Howell, and Mr.

Tessiere in their individual capacities. But we reverse the dismissal of the

Title II claims against the three individuals in their official capacities and

against the Colorado Department of Corrections.

      A.    Individual-Capacity Claims

      The individual-capacity claims were properly dismissed because Title

II does not create individual liability. Butler v. City of Prairie Village,

Kan., 172 F.3d 736, 744 (10th Cir. 1999).

      B.    Official-Capacity Claims and Claims Against the Colorado
            Department of Corrections

      In addition to the individual-capacity claims, Mr. Brooks also

brought Title II claims against the same individuals in their official

capacities and against the Colorado Department of Corrections. These

claims were also dismissed. The dismissal of these claims went too far.

      Invoking the Americans with Disabilities Act, Mr. Brooks alleged

that prison officials should have provided him with a special meal pass and

extra toilet paper because his ulcerative colitis required frequent and

unanticipated bathroom trips. The district court concluded that these

                                       3
allegations were not actionable because (1) Mr. Brooks had not alleged

enough facts to find a disability and (2) he had not alleged a denial of

services provided to other prisoners.

      On appeal, the defendants admit that Mr. Brooks alleged enough facts

to find a disability. But the defendants support the district court’s ruling

that Mr. Brooks did not allege a denial of services, programs, or activities

based on his disability.

      In considering the dismissal, we engage in de novo review, crediting

Mr. Brooks’s well-pleaded factual allegations as true and viewing them in

the light most favorable to Mr. Brooks. Colby v. Herrick, 849 F.3d 1273,

1279 (10th Cir. 2017).

      To state a valid claim, Mr. Brooks had to allege that he was excluded

from services, programs, or activities because of his disability. Robertson

v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007).

Mr. Brooks could satisfy this requirement by alleging a failure to allow

meaningful access to the prison’s services, programs, or activities. Id. at

1195. But the district court failed to consider whether the first amended

complaint had stated enough facts to find a denial of meaningful access.

      The defendants argue that (1) they accommodated the disability by

providing Mr. Brooks with adult undergarments and (2) a meal pass could

have jeopardized security. To evaluate these arguments, we consider the

extent of the defendants’ obligation to accommodate Mr. Brooks’s

                                        4
disability. The defendants could decline requested accommodations if they

would fundamentally alter the nature of the service or create an undue

burden. Robertson, 500 F.3d at 1196.

      First, the defendants contend that adult undergarments sufficiently

accommodated Mr. Brooks’s disability. But Mr. Brooks’s allegations could

plausibly suggest that adult undergarments were an insufficient

accommodation. Mr. Brooks didn’t want adult undergarments; he wanted a

special meal pass that would allow him to eat before or after designated

times if he was too ill to attend meals.

      Second, the defendants allege that a special meal pass would create

security problems. But we are addressing a motion to dismiss for failure to

state a valid claim, so we are confined to the first amended complaint.

Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995). There Mr. Brooks

alleged that he was given a special meal pass for three months in early

2012, and nothing in the complaint would suggest security problems. 1

      Finally, the defendants argue that the Americans with Disabilities

Act does not create a remedy for deficient medical care. But Mr. Brooks is

not invoking the Americans with Disabilities Act to complain about his


1
      Mr. Brooks also requested extra toilet paper, and the defendants
argue that he has not tied this request to the denial of a service, program,
or activity. We need not decide this issue because under Title II, the
alleged denial of a special meal pass could create liability even if the
denial of extra toilet paper would not.

                                       5
medical care; he is claiming a failure to provide adequate accommodations

to allow the same access to services, programs, and activities that are

available to prisoners without disabilities. As a result, the district court

erred in dismissing the Title II claims against the Colorado Department of

Corrections and the official-capacity claims against Ms. Howell, Ms.

Russell, and Mr. Tessiere. 2

III.   The Defendants’ Motion for Summary Judgment: Claims Under
       the Eighth Amendment

       Mr. Brooks also alleges Eighth Amendment violations by the owner

of a private prison and six individuals (Mr. Sicotte, Mr. Tessiere, Ms.

Russell, Dr. Oba, Ms. Turner, and Dr. Blake). On these claims, the district

court granted summary judgment to the defendants. We agree with the

grant of summary judgment for the owner of the private prison, Ms.

Sicotte, Mr. Tessiere, Dr. Oba, and Ms. Turner. But we reverse the grant of




2
      On remand, reconsideration of these claims could affect the district
court’s jurisdiction over the Title II claims. The Colorado Department of
Corrections ordinarily enjoys sovereign immunity. Griess v. Colo., 841
F.2d 1042, 1044 (10th Cir. 1988). But an exception exists when sovereign
immunity is abrogated. Mojsilovic v. Okla. ex rel. Bd. of Regents for Univ.
of Okla., 841 F.3d 1129, 1131 (10th Cir. 2016). To determine whether Title
II abrogates sovereign immunity, the court considers whether the State
violated (1) Title II of the Americans with Disabilities Act and (2) the
Fourteenth Amendment. United States v. Georgia, 546 U.S. 151, 159
(2006). Thus, the district court should revisit its jurisdiction upon further
examination of the Title II claims.


                                       6
summary judgment on the Eighth Amendment claims against Ms. Russell

and Dr. Blake.

      A.    Standard of Review

      Our review is de novo. Fields v. City of Tulsa, 753 F.3d 1000, 1008

(10th Cir. 2014). In undertaking this review, we uphold the summary

judgment rulings only if the defendants showed both the absence of a

genuine dispute of a material fact and the right to judgment as a matter of

law. Fed. R. Civ. P. 56(a). To apply this standard, we view the evidence

and all reasonable inferences in the light most favorable to Mr. Brooks.

Fields, 753 F.3d at 1009.

      B.    The Scope of the Eighth Amendment

      The Eighth Amendment prohibits deliberate indifference to an

inmate’s serious medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000). This prohibition contains objective and subjective

components. Id. The objective component is met if the deprivation involves

a sufficiently serious medical need, and the subjective component is met if

a prison official knowingly disregards an excessive risk to an inmate’s

health or safety. Id.

      The defendants concede the objective component, admitting that Mr.

Brooks’s ulcerative colitis entails a sufficiently serious medical need. The

disagreement lies in the subjective component.



                                      7
     C.    Defendant Sicotte

     Mr. Brooks claims that he should have been given a gluten-free diet

because he is allergic to gluten. Defendant Sicotte is a prison nurse who

admittedly refused to provide a gluten-free diet because she did not believe

that Mr. Brooks was allergic to gluten.

     To contest that belief, Mr. Brooks relied on medical notes, Dr.

Vahil’s recommendation of a gluten-free diet, and the results of genetic

testing on Mr. Brooks’s parents. But the medical notes did not refer to

testing for gluten sensitivity, Dr. Vahil relied only on what Mr. Brooks had

said, and one medical record showed that Mr. Brooks had tested negative

for gluten-sensitive enteropathy.

     Defendant Sicotte might have been wrong to doubt Mr. Brooks’s

sensitivity to gluten. But a medical mistake does not suggest a violation of

the Eighth Amendment. Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir.

2010). Thus, no genuine issue of material fact exists on the subjective

component for Ms. Sicotte: Even if she were wrong, her decision did not

knowingly disregard an excessive risk to Mr. Brooks’s health or safety.

     D.    Defendant Tessiere

     Mr. Brooks wanted not only a gluten-free diet but also Ensure

supplements. Nonetheless, Mr. Tessiere, the health services administrator,

refused to provide the Ensure supplements. The district court granted

summary judgment to Mr. Tessiere, reasoning that he was not personally

                                     8
involved in the decision. We need not address this reasoning because we

can affirm on alternative grounds. See Hornady Mfg. Co. v. Doubletap,

Inc., 746 F.3d 995, 1005 n.8 (10th Cir. 2014) (“We are not required to

restrict ourselves to the district court’s stated reasoning, and we may

affirm for any reason supported by the record.”).

     Defendant Tessiere urged summary judgment based not only on his

lack of personal participation but also on the lack of a medical need for the

Ensure supplements. We conclude that Mr. Brooks did not create a genuine

issue of material fact on his need for the Ensure supplements.

     The only evidence of a medical need came from Mr. Brooks’s

declaration. There Mr. Brooks insisted that he needed the Ensure

supplements. But Mr. Tessiere consulted a dietician, who concluded that

Mr. Brooks did not need the supplements. This conclusion might have been

wrong, but Mr. Tessiere’s reliance on the dietitian’s opinion does not

involve deliberate indifference. See Gee v. Pacheco, 627 F.3d 1178, 1192

(10th Cir. 2010).

     E.    Defendant Russell

     As discussed above, Mr. Brooks wanted a special meal pass and

characterized the refusal to provide one as a violation of the Americans

with Disabilities Act and the Eighth Amendment. On the Eighth

Amendment claim, Ms. Russell obtained summary judgment on the ground



                                      9
that she had not personally participated in the denial of a special meal

pass. In our view, this ruling was erroneous.

      Defendants can incur liability under § 1983 only if they participate

in, control, or direct the underlying act or omission. Serna v. Colo. Dep’t

of Corrs., 455 F.3d 1146, 1152-53 (10th Cir. 2006). Mr. Brooks presented

evidence that

           he had submitted a grievance asking for a special meal pass and

           Ms. Russell denied the grievance on the ground that the request
            was unreasonable.

This evidence linked Ms. Russell to the act underlying the claim (the

refusal of a special meal pass).

      Ms. Russell acknowledges this link but downplays it because it came

from the denial of a grievance. The nature of this link, Ms. Russell insists,

is dispositive under Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009).

There the court held “that a 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.” 587 F.3d at 1069.

But there the claim was simply that defendants had rubber-stamped the

denial of grievances. Id.

      Here Mr. Brooks presented evidence that he had directed his request

for a special meal pass to only one person, Ms. Russell, who decided to

reject the request. The fact that Ms. Russell’s decision came in the denial


                                      10
of a grievance makes no difference. Unlike in Gallagher, Mr. Brooks

alleged an affirmative link between the denial of the grievance and an

alleged constitutional violation, for Ms. Russell was the only person who

could and did decide on whether to give Mr. Brooks a special meal pass.

     The district court relied on a different theory: that Ms. Russell had

no authority to grant the request because a special meal pass could not

constitute an accommodation under the Americans with Disabilities Act.

We have elsewhere concluded that at the motion-to-dismiss stage a special

meal pass could constitute an accommodation under the Americans with

Disabilities Act. In light of that conclusion, Ms. Russell could have issued

a special pass when confronted with the grievance. In light of her

testimony to the contrary, there are genuine disputes of material fact that

precluded summary judgment regarding her knowledge of this authority

and, more generally, regarding whether she knowingly disregarded an

excessive risk to Mr. Brooks’s health.

     F.    Defendant Oba

     Defendant Oba is a physician who treated Mr. Brooks five times

while he was in prison.

     On appeal, Mr. Brooks makes two arguments involving Dr. Oba:

     1.    He should have provided treatment more frequently.

     2.    He disregarded records by treating the colitis with prednisone.



                                     11
In addition, Mr. Brooks asserts that the district court acted inconsistently

when it regarded Dr. Oba’s use of diet as a form of treatment and declined

to consider Nurse Sicotte’s use of a gluten-free diet as a form of treatment.

We reject these arguments.

      First, according to Mr. Brooks, Dr. Oba showed deliberate

indifference by refusing to provide more frequent treatment. But Mr.

Brooks does not identify any instances in which he was denied treatment

by Dr. Oba.

      Second, Mr. Brooks questions Dr. Oba’s medical decisions, like

prescribing prednisone even though it had not helped in the past.

According to Mr. Brooks, Dr. Oba had medical records showing that

prednisone had not helped. A poor medical decision may constitute medical

malpractice but not a violation of the Eighth Amendment. See Gee v.

Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).

      Finally, Mr. Brooks is incorrect in viewing the rulings as

inconsistent. Mr. Brooks insists that the district court rejected the claim

against Nurse Sicotte on the ground that a diet could not constitute

treatment for his condition. But Mr. Brooks does not provide a citation,

and we see no such statement in the district court’s ruling.

      G.      Defendant Turner

      Ms. Turner was an administrator who Mr. Brooks blames for the lack

of medical attention. According to Mr. Brooks, Ms. Turner had a duty to

                                      12
monitor the inmates’ health care. For this duty, Mr. Brooks relies on the

owner’s Policy 13-52. But Mr. Brooks has misread the policy; it did not

require Ms. Turner to monitor anyone’s health care.

      In addition, Mr. Brooks blames Ms. Turner for canceling

appointments. But Mr. Brooks has not presented evidence showing that the

cancellations were Ms. Turner’s fault. Thus, Ms. Turner was properly

awarded summary judgment.

      H.    Defendant Blake

      Dr. Blake is a dentist who offered to remove a tooth. According to

Mr. Brooks, the tooth required removal because Dr. Blake had neglected to

provide dental care for months. The district court rejected the claim

against Dr. Blake based on his offer to remove the tooth. But the court

failed to consider Mr. Brooks’s evidence about neglect in the preceding

months.

      This evidence involved Dr. Blake’s alleged delay in treating a cavity.

“Although a tooth cavity is not ordinarily deemed a serious medical

condition, that is because the condition is readily treatable. Unless the

cavity is treated, however, the tooth will degenerate, probably cause severe

pain, and eventually require extraction and perhaps further extraordinary

invasive treatment.” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.

2000); see also Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980)

(“[D]ental care is one of the most important medical needs of inmates.)”.

                                      13
      Mr. Brooks presented evidence that

           Dr. Blake had known in May 2010 that Mr. Brooks suffered
            from a cavity but did nothing,

           Mr. Brooks had cracked the same tooth one month later and
            asked for a dentist to fix the tooth,

           Mr. Brooks had complained 2-3 months later that he needed to
            see a dentist as soon as possible because he had a tooth with
            exposed nerves, resulting in great pain,

           a prison official had recognized the next day that Mr. Brooks
            was in pain and that his tooth was decaying, and

           Dr. Blake had failed to provide treatment again until January
            2011, over 7 months after he had diagnosed the cavity.

This evidence could lead a reasonable fact-finder to conclude that Dr.

Blake had turned a blind eye to a sufficiently serious dental condition. See

Harrison v. Barkley, 219 F.3d 132, 134, 136 (2d Cir. 2000) (holding that

continued failure to treat a prisoner’s tooth cavity could violate the Eighth

Amendment). Thus, the district court erred in granting summary judgment

to Dr. Blake.

      I.    Defendant Correction Corporation of America

      The district court granted summary judgment to the owner of the

prison (Corrections Corporation of America). On appeal, Mr. Brooks

argues that he should have been allowed to amend the complaint to revise

his claim against Corrections Corporation of America.

      We review the denial of a request to amend a complaint under the

abuse-of-discretion standard. Hayes v. Whitman, 264 F.3d 1017, 1027 (10th
                                     14
Cir. 2001). The district court acted within its discretion by refusing to

allow the amendment. Mr. Brooks had already amended the complaint

twice and did not file a separate motion for leave to amend again. See

Albers v. Bd. of Cty. Comm’rs of Jefferson Cty., 771 F.3d 697, 706 (10th

Cir. 2014) (holding that the district court did not abuse its discretion in

denying leave to amend when the plaintiffs had not filed a motion to amend

or a proposed amended complaint).

      Mr. Brooks contends that his response brief should have been

considered a request to amend the complaint. The district court has

discretion to consider issues presented in the response as a request to

amend the complaint. See Viernow v. Euripides Dev. Corp., 157 F.3d 785,

790 n. 9 (10th Cir. 1998) (“Issues raised for the first time in a plaintiff’s

response to a motion for summary judgment may be considered a request to

amend the complaint, pursuant to Fed. R. Civ. P. 15.”). But the district

court need not treat the response as a request to amend. See Evans v.

McDonald’s Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991) (holding that

the district court did not err in refusing to consider a claim raised for the

first time in the plaintiff’s response to a summary judgment motion).

      The district court could have treated Mr. Brooks’s response as a

request to amend, but had no obligation to do so. Nothing in the response

to the summary judgment motion would have alerted the district court to a

desire to amend the complaint.

                                      15
      Mr. Brooks states that he “was going to ask leave to amend his

complaint.” Appellant’s Opening Br. at 26. But the district court had no

obligation to anticipate a future request to amend the complaint. 3

IV.   In forma Pauperis

      Mr. Brooks requests leave to appear in forma pauperis. We grant this

request. This status will allow Mr. Brooks to avoid prepayment of the

filing fee. 28 U.S.C. § 1915(a)(1). But he remains obligated to pay all

filing and docketing fees. See Rachel v. Troutt, 820 F.3d 390, 399 (10th

Cir. 2016). These fees are to be paid to the Clerk of the District Court for

the District of Colorado.

V.    Request for an Order to Restrict Access to Files

      In addition, Mr. Brooks requests an order preventing the state

department of corrections from reading and deleting his legal files. We

deny this request.

VI.   Conclusion

      We affirm the order striking Mr. Brooks’s requests for partial

summary judgment.

      On the Title II claims, we affirm the dismissal of the individual-

capacity claims and reverse the dismissal for the Colorado Department of

3
      In a single sentence, Mr. Brooks also asserts that he should have been
allowed to add medical malpractice claims against Dr. Oba, Dr. Blake, Ms.
Sicotte, and Ms. Turner. Appellant’s Opening Br. at 28-29. But Mr. Brooks
never alerted the district court to a desire to add these claims.

                                     16
Corrections and the official capacities of Ms. Russell, Ms. Howell, and Mr.

Tessiere.

     On the Eighth Amendment claims, we affirm the award of summary

judgment to Ms. Sicotte, Mr. Tessiere, Dr. Oba, Ms. Turner, and

Corrections Corporation of America. But on the Eighth Amendment claims,
                                                                         4
we reverse the award of summary judgment to Ms. Russell and Dr. Blake.


                                     Entered for the Court


                                     Robert E. Bacharach
                                     Circuit Judge




4
      We note that Mr. Brooks is pro se and understandably may feel
strongly about his appeal points. But we do not condone Mr. Brooks’s
personal criticisms of the magistrate judge. For example, Mr. Brooks
asserts that the magistrate judge displayed “total incompetence” and
engaged in an act of “lunacy.” Appellant’s Opening Br. at 31, 45. There is
no place for such name-calling of anyone, least of all a respected member
of the judiciary.

                                    17
