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Perceval v. Robinson

United States District Court, D. Colorado

August 26, 2014

BRIAN PATRICK SPENSER PERCEVAL, Plaintiff,
v.
GRAYSON ROBINSON, Sheriff, ELAINE MEYER, Health Services Administrator, and Linda C. Ross, L.P.N., Defendants.

ORDER

BOYD N. BOLAND, Magistrate Judge.

This matter arises on Defendants' Motion for Summary Judgment [Doc. #77, filed 06/13/2014] (the "Motion"). The Motion is GRANTED.

I. STANDARD OF REVIEW

In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co. , 398 U.S. 144, 157 (1970). Summary judgment shall be rendered "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of demonstrating by reference to portions of pleadings, discovery and disclosure materials on file, and any affidavits, the absence of genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). "The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial." Trainor v. Apollo Metal Specialties, Inc. , 318 F.3d 976, 979 (10th Cir. 2002).

The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Celotex , 477 U.S. at 324. Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co. , 756 F.2d 1467, 1474 (10th Cir. 1985).

II. UNDISPUTED MATERIAL FACTS

1. The plaintiff was transferred to the Arapahoe County Detention Facility ("ACDF") from a Denver jail at approximately 1:30 p.m. on May 16, 2012. Second Amended Complaint [Doc. #65], p. 3, ¶ 13; Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment [Doc. #79] (the "Response"), footnote 3. At all times pertinent to the allegations of the Second Amended Complaint [Doc. #65], the plaintiff was a pretrial detainee at ACDF. First Amended Complaint [Doc. #9], p. 14.[1]

2. Accompanying the plaintiff in a separate bag carried by a deputy were his civilian clothing and three medications: a labeled albuterol inhaler, an unlabeled inhaler, and a bottle of nitroglycerin tablets. Second Amended Complaint, p. 3, ¶ 13; Motion, Ex. J, p. 2; Defendants' Reply to Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment [Doc. #81] (the "Reply"), Ex. K, 13:17-15:1.

3. The plaintiff identified the Veteran's Administration ("VA") as the pharmacy where he received an inhaler and nitroglycerin tablets. Motion, Ex. B, 12:7-22; Ex. A, 37:20-38:6; Ex. D, ¶ 4; Ex. E, 24:12-25:11. Another inhaler was marked as being prescribed while the plaintiff was incarcerated at the Denver jail. Ex. B, 13:24-14:4.

4. Pursuant to ACDF policy, when an inmate comes into the facility with medications, those medications are taken, logged, and depending on the type of medication, placed in the infirmary for safe keeping. Id. at Ex. E, 10:19-11:7; Ex. C, 31:16-32:18. Once medications are verified, they are made available to a patient. Id. at Ex. C, 16:24-17:4 and 18:19-19:1. The booking nurse at ACDF verifies medications by completing a Release of Information form and submitting it to the pharmacy that filled the prescription. Id. at Ex. A, 38:7-10 and 62:14-19; Exhibit C, 103:19-104:4.

5. The medications that came into the facility with the plaintiff were taken, logged, and placed in the infirmary by Nurse Paula Bertram on May 16, 2012. Id. at Ex. E, 10:19-11:7; Ex. F; Ex. G; Reply, Ex. M, 12:6-13:20.

6. At 10:48 p.m. on May 16, 2012, Nurse Sandy Marsyk sent a fax to the Denver VA office seeking verification of the plaintiff's medications. Reply, Ex. M, 24:9-27:19; Ex. O; Ex. N, 38:11-39:6.

7. According to the plaintiff, his rescue inhaler (which contains Albuterol) was used to dilate his bronchial tubes when he experienced difficulty breathing and felt like he was going to collapse. Motion, Ex. B, 24:9-15; Response, Ex. 4, 8:1-10-2. He typically took three to four puffs of the rescue ...


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