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

                             FOR THE TENTH CIRCUIT                         October 26, 2017

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DAMON ELLIS,

      Plaintiff-Appellee,
                                                              No. 16-1387
v.                                                  (D.C. No. 1:15-CV-01045-KLM)
                                                               (D. Colo.)
JOHN OLIVER, in his individual and
official capacities,

      Defendant-Appellant,

and

UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS;
DAVID ALLRED, DO, in his individual
and official capacities; JOHN/JANE
DOES, in their individual and official
capacities,

       Defendants.




                              ORDER AND JUDGMENT*


Before MATHESON, McKAY, and McHUGH, Circuit Judges.


       Warden John Oliver appeals the magistrate judge’s denial of his qualified

immunity defense to Eighth Amendment claims brought against him in his individual

       *
        This order and judgment is not binding precedent, except under the doctrines of
law of this 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.
capacity. Reviewing the magistrate judge’s denial de novo, we reverse the ruling and

remand with instructions for the magistrate judge to dismiss the claims against Warden

Oliver.

                                                  I.

       On October 20, 2013, inmate Damon Ellis injured his right ring finger at the

United States Penitentiary in Florence, Colorado. Several days later, the prison medical

staff examined Mr. Ellis and diagnosed him with a ruptured tendon requiring immediate

surgery. Prison staff placed a request for a consultation with a hand surgeon. In late

November, Mr. Ellis saw two outside medical providers who also advised urgent surgery.

A third meeting with a prison physician mid-December confirmed this recommendation.

       Mr. Ellis saw a hand specialist in January 2014, who explained that a primary

repair of the tendon was no longer possible because too much time had passed. The

specialist suggested three options: (1) doing nothing, which would result in limited

mobility, (2) removing the tendon, which would also result in limited mobility, or (3)

conducting a two-stage surgery to first remove the tendon and then, three months later,

perform a tendon graft. Mr. Ellis was eligible for transfer to a residential reentry center

or halfway house as soon as March 2014. In February, a prison medical staff member,

allegedly acting under “the direction and decision of various Supervisory Defendants,”

informed Mr. Ellis that he could either receive the two-stage surgery and remain in prison

until he healed, or he could be transferred to a halfway house without having the

procedure. (Appellant’s App. at 18.) Mr. Ellis chose not to delay his transfer out of the



                                              2
penitentiary, but also refused to sign a medical release. He now claims to have lost the

use of his finger.

       In May 2015, Mr. Ellis filed this suit against the United States government, the

Federal Bureau of Prisons, prison warden John Oliver in his official and individual

capacities, prison physician David Allred in his official and individual capacities, and

five unnamed defendants in their official and individual capacities for violations of the

Eighth Amendment and the Federal Torts Claims Act. The defendants sought dismissal

of all of Mr. Ellis’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The parties consented to have the magistrate judge conduct all proceedings in the case,

including ruling on the defendants’ motion for dismissal.

       The magistrate judge granted the defendants’ motion as to Mr. Ellis’s

constitutional claims against them in their official capacities and as to Dr. Allred in his

individual capacity. The court further dismissed Mr. Ellis’s tort claims on procedural and

jurisdictional grounds. The magistrate judge rejected Warden Oliver’s qualified

immunity defense, however, concluding that Mr. Ellis had alleged a plausible Eighth

Amendment claim against the warden in his individual capacity. Warden Oliver

challenges the magistrate judge’s denial of his qualified immunity defense on appeal.

                                                  II.

       We review the magistrate judge’s denial of Warden Oliver’s motion to dismiss

based on qualified immunity de novo. See, e.g., Brown v. Montoya, 662 F.3d 1152, 1162

(10th Cir. 2011). Under this standard, “all well-pleaded factual allegations in the . . .

complaint are accepted as true and viewed in the light most favorable to the nonmoving

                                              3
party,” Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006) (internal quotation marks

omitted) (alteration in original), but the pleadings must “contain sufficient factual matter .

. . to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks omitted). To achieve “factual plausibility,” a

plaintiff must plead “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. In setting out these

plausible claims, the complaint must “make clear exactly who is alleged to have done

what to whom, . . . as distinguished from collective actions against the state.” Kansas

Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (internal quotation

omitted).

       Here, Mr. Ellis brings claims against Warden Oliver under Bivens, which

“provides a ‘private right of action for damages against federal officers’ who violate

certain constitutional rights.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)

(quoting Iqbal, 556 U.S. at 675); see also Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Ellis alleges that the warden violated his

Eighth Amendment rights by failing to provide adequate medical care and treatment and

by requiring an extension of incarceration to receive surgery. Under the doctrine of

qualified immunity, “government officials are not subject to damages liability for the

performance of their discretionary functions when their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (internal quotation marks

omitted). Thus, to survive Warden Oliver’s 12(b)(6) motion, Mr. Ellis must allege a

                                                4
plausible violation of his clearly established constitutional rights sufficient to overcome a

qualified immunity defense.

       In analyzing a qualified immunity defense, this court must consider (1) whether

the plaintiff’s alleged facts make out a violation of a constitutional right, and (2) whether

the right at issue was clearly established at the time of the defendant’s alleged

misconduct. Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011).

Accordingly, we first determine whether Mr. Ellis has alleged a plausible constitutional

violation.

       The specific requirements to establish a Bivens claim vary, depending on the

constitutional right at issue. See Iqbal, 556 U.S. at 676; Pahls, 718 F.3d at 1225.

Regardless of these differences, every Bivens action requires the plaintiff to plead facts

showing that each defendant violated the Constitution through his or her “own individual

actions.” Iqbal, 556 U.S. at 676 (holding that “vicarious liability” is inapplicable to

Bivens claims). These “specific actions” must show each defendant’s personal

involvement in the alleged constitutional violation. Pahls, 718 F.3d at 1225-26. The

plaintiff must also show that each defendant “caused the complained of constitutional

harm” and “acted with the state of mind required to establish the alleged constitutional

deprivation.” Id. at 1225 (quoting Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.

2010)); see also Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767

(10th Cir. 2013).

       Here, Warden Oliver concedes that Mr. Ellis’s constitutional rights appear to have

been violated by someone. (Appellant’s Reply Br. at 3.) He maintains, however, that

                                              5
Mr. Ellis’s complaint does not allege facts sufficient to plausibly establish that the

warden personally violated Mr. Ellis’s constitutional rights with the requisite state of

mind. (Id. at 3-4.) After reviewing the pleadings in the light most favorable to Mr. Ellis,

we concur.

       The most direct allegation of Warden Oliver’s personal involvement in Mr. Ellis’s

constitutional harm is the claim that the prison staff member acted “pursuant to the

direction and decision of various Supervisory Defendants” in telling Mr. Ellis that he had

to choose between treatment and continued incarceration. (Appellant’s App. at 18.) The

complaint identifies “Supervisory Defendants” as “Defendant Oliver and those

Defendants Jane/John Doe 1-5 who have supervisory responsibilities.” (Id. at 17.) As

Warden Oliver correctly argues, the term “various” is ambiguous as to which of the six

“Supervisory Defendants” are being accused, and it may not even include the warden.

The complaint contains no specific allegations of Warden Oliver’s actions separate from

the other defendants. As this court has previously held, an “undifferentiated contention

that ‘defendants’ infringed [a plaintiff’s] rights” is insufficient to meet the Bivens

pleading requirements. Pahls, 718 F.3d at 1225-26; see also Brown, 662 F.3d at 1165.

       Mr. Ellis argues the complaint adequately alleges Warden Oliver’s individual

actions because the warden must have known about Mr. Ellis’s condition, pressing need

for surgery, and visit to the outside specialist by virtue of his supervisory role at the

prison. (Appellee’s Br. at 18-19.) This court previously considered a similar claim that a

warden’s position necessarily made him aware of an inmate’s deteriorating mental health,

ultimately concluding that it is “not plausible to infer that a warden is aware of

                                               6
everything that happens to each inmate in his custody.” Vega v. Davis, 572 F. App’x

611, 618 (10th Cir. 2014) (internal quotation marks omitted). And Mr. Ellis presents no

additional factual allegations to support his bare assertion that Warden Oliver “knew or

should have known” about the need for medical treatment and the resulting constitutional

harm. (See Appellant’s App. at 15.)

       Ultimately, Mr. Ellis has failed to identify any “specific actions taken by [the

warden], or specific policies over which [the warden] possessed supervisory

responsibility, that violated [his] clearly established constitutional rights.” Pahls, 718

F.3d at 1228. While this court is sympathetic to the informational disparity1 between a

prisoner and prison officials, especially in the pre-discovery context, something more is

required to establish a constitutional violation and overcome the presumption of qualified

immunity. See id. at 1227; Iqbal, 556 U.S. at 677-679.

       Since Mr. Ellis has failed to allege facts plausibly showing that the warden’s

individual actions violated his constitutional rights, he has also failed to show that

Warden Oliver caused the constitutional harm and did so with the requisite state of mind.

Furthermore, because we conclude that Mr. Ellis failed to plead facts sufficient to show a

plausible constitutional violation committed by Warden Oliver, we need not reach the

       1
        But see, e.g., Bustos v. United States, No. 08-CV-00153-LTB-MEH, 2009 WL
416511, at *3 (D. Colo. Feb. 18, 2009) (“The Court sees utility for judicial efficiency and
fairness to the parties in allowing . . . limited discovery into the identities of the John Doe
defendants [prior to ruling on the defendants’ pending motion to dismiss].”); see also
Crawford-El v. Britton, 523 U.S. 574, 593 n. 14 (1998) (“ . . . [L]imited discovery may
sometimes be necessary before the district court can resolve a motion for summary
judgment based on qualified immunity.”) The issue of allowing limited discovery into
the identities of the John/Jane Doe defendants was neither raised nor decided in this case.

                                               7
second prong of the analysis to determine whether the right that Warden Oliver allegedly

violated was clearly established.

                                               III.
       We accordingly REVERSE and REMAND this appeal with instructions to

dismiss the claims against Warden Oliver without prejudice based on qualified immunity.


                                                      ENTERED FOR THE COURT


                                                      Monroe G. McKay
                                                      Circuit Judge




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