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Sherman v. Klenke

United States District Court, D. Colorado

September 9, 2014

MATTHEW RYAN SHERMAN, Plaintiff,
v.
WILLIAM KLENKE, N.P., and DOLORES MONTOYA, H.S.A., Defendants

Order Filed: July 15, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Matthew Ryan Sherman, Plaintiff, Pro se, Canon City, CO.

For William Klenke, N.P., Dolores Montoya, H.S.A., Defendants: Jennifer Susan Huss, Kristin A. Ruiz, Colorado Attorney General's Office, Denver, CO.

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ORDER

PHILIP A. BRIMMER, United States District Judge.

This matter is before the Court on the Recommendation of United States Magistrate Judge (the " Recommendation" ) [Docket No. 163] issued on July 15, 2014. The magistrate judge recommends that the Court grant the Motion for Summary Judgment [Docket No. 146] filed by defendants William Klenke and Dolores Montoya. Plaintiff Matthew Ryan Sherman filed timely objections [Docket No. 166] to the Recommendation. Therefore, the Court will " determine de novo any part of the magistrate judge's disposition that has been properly objected to." [1] Fed.R.Civ.P. 72(b)(3).

I. ANALYSIS[2]

Plaintiff's only remaining claims assert violations of the Eighth Amendment. Plaintiff claims that Mr. Klenke acted with deliberate indifference by a refusal to " provide appropriate, adequate, effective pain medications" and a refusal to provide a " medical lay-in from work due to the severe pain." Docket No. 92 at 7, ¶ ¶ 39-40.[3] Plaintiff claims that Ms. Montoya acted with deliberate indifference because she had actual knowledge that plaintiff was suffering " debilitating pain," had a duty to ensure that Mr. Klenke provided plaintiff adequate care, but failed to render assistance or ensure that Mr. Klenke provided adequate treatment. Id. at 7-9, ¶ ¶ 45, 51, 55.

" A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." See Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (" The Eighth Amendment, as we have said, requires that inmates be furnished with the basic human needs, one of which is 'reasonable safety.'" )

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(citing DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). " The analysis [of an Eighth Amendment claim] should not be based on 'a court's idea of how best to operate a detention facility,'" but should reflect " the evolving standards of decency that mark the progress of a maturing society," which the Tenth Circuit has characterized as a " lofty standard." DeSpain v. Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S. 337, 351, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). To prevail on his claim that Mr. Klenke violated the Eighth Amendment, plaintiff must show that (1) objectively, the harm he complains of is sufficiently " serious" to merit constitutional protection and (2) defendants were subjectively aware of a substantial risk to plaintiff's health or safety and acted in purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

For the purposes of resolving this motion the Court, like the magistrate judge, assumes that the objective element has been satisfied and therefore turns to the subjective element. The Eighth Amendment does not reach a prison official's conduct unless the official " knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see also Verdecia v. Adams, 327 F.3d 1171, 1175-76 (10th Cir. 2003) (" Deliberate indifference requires that the defendant's conduct is in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, or that the conduct disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." (internal citations omitted)). An action unaccompanied by a subjective awareness of an unreasonable risk of harm does not constitute " punishment" within the meaning of the Eighth Amendment. Farmer, 511 U.S. at 837-38. A court " may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious." Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (" In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." ).[4] However, even if the risk of harm is obvious, the inquiry does not end. " If a prison doctor, for example, responds to an obvious risk with treatment that is patently unreasonable, a jury may infer conscious disregard." Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). " But where a doctor orders treatment consistent with the symptoms presented and then continues to monitor the patient's condition, an inference of deliberate indifference is unwarranted under our case law." Id. at 1232-33. The negligent conduct of a prison official is, in all cases, insufficient to rise to the level of deliberate indifference. Farmer, 511 U.S. at 835 (" Eighth Amendment liability requires more than ordinary lack of due care for the prisoner's interests or safety" (quotations omitted)).

A. Plaintiff's Claim Against Mr. Klenke

With respect to plaintiff's claim against Mr. Klenke, the Recommendation concluded

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that plaintiff failed to present a genuine issue of material fact with respect to the subjective element of the Eighth Amendment test for deliberate indifference. Docket No. 163 at 22. Plaintiff objects to the Recommendation's conclusion on multiple grounds.

Plaintiff first claims that the magistrate judge drew an improper inference from that fact that Dr. Rieger did not recommend that plaintiff receive any pre-operative pain medication and the fact that Dr. Rieger did not recommend emergency surgery. Docket No. 166 at 2. Plaintiff argues that the fact that Dr. Rieger did not recommend pain medication does not diminish Mr. Klenke's duty to treat plaintiff's pain. Id. Plaintiff is correct to a point. However, if Dr. Rieger had instead recommended pain medication and Mr. Klenke did not alter his treatment, such inaction, as noted in the Recommendation, may support a inference that Mr. Klenke acted with conscious disregard. Docket No. 163 at 19 n.12 (citing Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (holding that plaintiff raised inference that defendants acted with deliberate indifference where record showed that officials ignored recommendations of specialists and treating physicians), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)). The fact that Dr. Rieger made no such recommendation does not call into question Mr. Klenke's treatment of plaintiff's pain. Plaintiff claims that the fact that his condition did not require emergency surgery does not suggest that his pain was in any way lessened and does not permit Mr. Klenke to act with deliberate indifference. Docket No. 166 at 2. Again, plaintiff is correct to a point, but plaintiff fails to identify where the magistrate judge made such an inference and the Court is unable to locate such an inference in its own review of the Recommendation. To the contrary, the magistrate judge declined to discount plaintiff's claim of persistent and worsening pain and plaintiff's belief that his pain required " elevated or different types of medication." Docket No. 163 at 18. Thus, the Court finds no error in this aspect of the Recommendation.

Plaintiff next argues that the Recommendation erred in characterizing plaintiff's claim as a difference of opinion or disagreement over the proper course of treatment. Docket No. 166 at 3. Plaintiff asserts that Mr. Klenke's treatment of plaintiff's pain was " completely ineffective" such that Mr. Klenke acted with deliberate indifference by continuing such treatment. Id. at 4. However, plaintiff fails to present expert testimony indicating that Mr. Klenke's treatment was completely ineffective or " patently unreasonable," see Self v. Crum, 439 F.3d at 1232, and such a conclusion cannot be inferred from the record. The Recommendation concluded, and plaintiff does not dispute, that Mr. Klenke saw plaintiff 13 times between June 6, 2011 and October 24, 2011 and prescribed multiple medications in response to plaintiff's complaints of pain, increasing or decreasing dosages at various times. Docket No. 163 at 18. Thus, plaintiff's claim that Mr. Klenke failed to " give him something -- anything -- to alleviate his pain" is factually inaccurate. See Docket No. 166 at 4. Plaintiff argues that his frequent visits to Mr. Klenke show that Mr. Klenke knew of plaintiff's continued pain. It is not disputed that Mr. Klenke was aware of plaintiff's complaints of continued pain, but this does not overcome plaintiff's failure to show that Mr. Klenke possessed the requisite state of mind. Mr. Klenke does not admit to knowing that his treatment was completely ineffective and, as discussed above, the record contains insufficient evidence upon which to conclude that Mr.

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Klenke's treatment was so obviously and completely ineffective so as to infer that Mr. Klenke possessed such knowledge. See Heidtke v. Corr. Corp. of Am., 489 F.App'x 275, 281-82 (10th Cir. 2012) (unpublished) (" an Eighth Amendment deliberate indifference claim is actionable only where the need for . . . additional treatment is obvious" ). The fact that Mr. Klenke saw plaintiff multiple times and altered dosages of pain medication belies any claim that Mr. Klenke disregarded a risk that his treatment was completely ineffective. Even if Mr. Klenke should have been aware that his treatment was completely ineffective, any " failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Farmer, 511 U.S. at 838. Plaintiff's claim against Mr. Klenke is not meaningfully distinguishable from Rose v. Beckham, 82 F.App'x 662 (10th Cir. 2003) (unpublished), where the plaintiff claimed that " defendants were deliberately indifferent to his pain during the time interval preceding surgery." Id. at 665. The Tenth Circuit noted that the plaintiff received pain medications " on eighty-seven of the ninety-nine days he was incarcerated" and determined that plaintiff's complaints were a " difference of opinion" with regard to the ideal type or amount of pain medication, which was " simply [] insufficient to establish [defendants] deliberate indifference to his medical needs." Id. Because plaintiff fails to show that Mr. Klenke's treatment was patently unreasonable or that Mr. Klenke acted with the requisite state of mind, plaintiff's claim consists of mere disagreement " with a diagnosis or a prescribed course of treatment[, which] does not state a constitutional violation." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999). The Court therefore finds no error in this aspect of the Recommendation.

This conclusion is not inconsistent with the cases plaintiff cites in his objection. Plaintiff cites Feder v. Sposato, 2014 WL 1801137, at *9 (E.D.N.Y. May 7, 2014), for the proposition that treatment must be adequate, arguing that pain medication that does not alleviate pain cannot be adequate. Docket No. 166 at 4. However, as noted above, plaintiff has failed to show that Mr. Klenke's care was so obviously inadequate that a jury could infer that Mr. Klenke acted with deliberate indifference. See Self, 439 F.3d at 1232 (holding that medical malpractice does not give rise to constitutional violation); Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (holding that medical professional's failure to " treat a serious medical condition properly" does not automatically constitute deliberate indifference). Plaintiff also argues that Womack v. Bakewell, 2013 WL 3148467, at *9 (E.D. Cal. June 19, 2013), a case cited in the Recommendation, is factually distinguishable, which is not, by itself, a sufficient basis for the Court to conclude that the Recommendation erred. Docket No. 166 at 5. The fact that, during surgery, Dr. Rieger found a previously undiscovered cyst that may have been causing plaintiff additional pain is not relevant because there is no indication that Mr. Klenke knew about this cyst during his pre-operative treatment of plaintiff's pain or that such a risk was obvious. Plaintiff cites multiple Seventh Circuit cases for the proposition that physicians are constitutionally " obligated not to persist in ineffective treatment." Docket No. 166 at 5 (quoting Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011). However, this does not alter the subjective element of the Eighth Amendment test, requiring plaintiff to show that medical personnel knew of a risk that treatment was ineffective and chose to dis

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regard such a risk. The fact that Mr. Klenke prescribed various medications and worked to secure surgery on plaintiff's hernia so as to put a permanent end to his pain does not suggest that Mr. Klenke knew his treatment was ineffective, but persisted with deliberate disregard. Cf. Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (" The record shows rather that Dr. McEntyre factored Johnson's pain into his treatment decisions and, given his findings, he prescribed non-surgical remedies designed to alleviate Johnson's pain." ). Plaintiff's citation to district court cases from outside the Tenth Circuit are not binding and do not otherwise provide a sufficient basis to conclude that plaintiff has satisfied the subjective element. See Docket No. 166 at 5-6. Plaintiff's objection on this point is overruled.

Plaintiff argues that the recommendation erred in finding inadmissible under Fed.R.Evid. 404(b) affidavits and grievances submitted by other prisoners which criticized Mr. Klenke's response to pain complaints and requests for pain medication. Docket No. 166 at 6. Plaintiff argues that these affidavits are not character or propensity evidence, but instead show that Mr. Klenke has a custom or practice of ignoring inmate complaints. Id. The Court " may consider only admissible evidence in 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). " Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). Evidence that Mr. Klenke " ha[d] a custom[] or practice of ignoring inmate complaints of pain" when used to show that, on separate occasions, Mr. Klenke similarly ignored plaintiff's complaints is the very type of propensity evidence prohibited by Rule 404(b). See Guidance Endodontics, LLC v. Dentsply Int'l, Inc., 705 F.Supp.2d 1265, 1268 (D.N.M. 2010) (" one cannot present evidence the relevance of which is based on the forbidden inference: the person did X in the past, therefore he probably has a propensity for doing X, and therefore he probably did X this time, too" ). To the extent plaintiff attempts to invoke Fed. R. Evid 406, he fails to make the required foundational showing. Under Rule 406, a party may present evidence of a person's habit for the purposes of proving that the person acted in conformity with that habit. Fed.R.Evid. 406. However, habit is established only upon a showing " regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances." Perrin v. Anderson, 784 F.2d 1040, 1046 (10th Cir. 1986) (quotations omitted). The affidavits and grievances plaintiff provides do not establish the necessary foundation that other inmates posed the same situation as Mr. Sherman did so as to be admissible under Rule 406. For example, inmate Donald Reynolds sought treatment for degenerative disk disease and provides no indication of how many times he visited Mr. Klenke or what specific complaints the two discussed. Docket No. 155 at 68-70. Inmate Jesus Epps had back pain and similarly does not indicate the degree and frequency of his interactions with Mr. Klenke. Id. at 70-71. Moreover, because plaintiff is required to show that Mr. Klenke acted with deliberate indifference with respect to his treatment of plaintiff, the fact that other inmates believe that Mr. Klenke failed to adequately respond to their complaints of pain is of questionable relevance. The Court finds no error in this aspect of the Recommendation.

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B. Plaintiff's Claim Against Ms. Montoya

With respect to plaintiff's claim against Ms. Montoya, the Recommendation concluded that, because plaintiff failed to show that Mr. Klenke acted with deliberate indifference, his claim that Ms. Montoya, as Mr. Klenke's supervisor, was deliberately indifferent necessarily fails. Docket No. 163 at 22. Plaintiff does not object to this conclusion, but argues that his claim is against Ms. Montoya " in her capacity as a state prison official who was aware of [plaintiff's] excruciating pain, had the power to do something about it and refused to do so." Docket No. 166 at 7. Specifically, plaintiff claims that Ms. Montoya should have questioned the propriety of Mr. Klenke's treatment and ordered that plaintiff receive a second opinion. Id. However, with respect to Ms. Montoya's involvement in Mr. Klenke's treatment, " [i]ndividual liability under § 1983 must be based on personal involvement in the alleged constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). It is undisputed that Ms. Montoya was not involved in treatment decisions made by clinic medical providers and that Ms. Montoya was not qualified to issue or change prescriptions. Docket No. 146 at 10, ¶ ¶ 65-66; Docket No. 155 at 4. Thus, plaintiff does not explain what ability, if any, Ms. Montoya had to dictate Mr. Klenke's treatment decisions or why, based upon the evidence in the record, Ms. Montoya was constitutionally required to question Mr. Klenke's medical decisions. Cf. Witmer v. Powell, 114 F.App'x 372, 374 (10th Cir. 2004) (unpublished) (rejecting claim that prison officials were liable for assigning plaintiff work duties in part because work duties were within the physical limitations imposed by physicians). But see Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (holding that deliberate indifference can be manifested by non-medical prison officials " intentionally interfering with the treatment once prescribed" ). Even if Ms. Montoya was required to intervene in some way, plaintiff fails, as discussed above, to identify sufficient evidence upon which to conclude that Mr. Klenke's treatment was obviously ineffective so as to infer that Ms. Montoya possessed the requisite state of mind. To the extent plaintiff claims that Ms. Montoya was required to secure a second opinion for plaintiff, plaintiff appears to argue that Ms. Montoya failed to fulfill her role as a " gatekeeper for other medical personnel capable of treating the condition." See Sealock, 218 F.3d at 1211. However, plaintiff's claim fails unless he can show that Ms. Montoya " delay[ed] or refus[ed] to fulfill that gatekeeper role due to deliberate indifference." Id. It is undisputed that Ms. Montoya had the authority to change a patient's health care provider if it appeared as though the patient was not receiving appropriate medical care. Docket No. 146 at 10, ¶ 68. However, Ms. Montoya does not admit to knowing that Mr. Klenke's treatment of plaintiff's pain was inadequate and, as discussed above, Mr. Klenke's care was not so patently unreasonable as to provide a basis for inferring that Ms. Montoya possessed such knowledge. Plaintiff's objection identifies no other evidence upon which to conclude that Ms. Montoya failed to fulfill her gatekeeper role. Plaintiff has therefore failed to show that Ms. Montoya's actions rise to the level of a constitutional violation. Cf. Self, 439 F.3d at 1231 (holding that prison official can be liable for " preventing an inmate from receiving medical treatment or denying access to medical personnel capable of evaluating the inmate's condition" ). Plaintiff's objection on

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this point is overruled.[5]

II. CONCLUSION

For the foregoing reasons, it is

ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 163] is ACCEPTED. It is further

ORDERED that defendants' Motion for Summary Judgment [Docket No. 146] is GRANTED. It is further

ORDERED that this case is dismissed in its entirety.

RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Craig B. Shaffer, United States Magistrate Judge.

This matter comes before the court on Defendants William Klenke and Dolores Montoya's Motion for Summary Judgment (doc. # 146) filed on January 23, 2014. Pro se Plaintiff Matthew Ryan Sherman filed his Response to Motion for Summary Judgment (doc. # 155) on March 10, 2014, which was followed by Defendants' Reply (doc. # 162) on April 14, 2014. With an Order of Reference (doc. #31) dated May 9, 2012, this matter was referred to the Magistrate Judge to, inter alia, " submit proposed findings of fact and recommendations for rulings on disposition motions." I have carefully considered the pending motion and related briefs and exhibits, the entire case file, and the applicable law. The court does not believe that oral argument would assist its evaluation of the arguments raised by the parties. For the following reasons, I recommend that Defendants' Motion for Summary Judgment be granted.

PROCEDURAL HISTORY

This action was commenced by Mr. Sherman on November 28, 2011 with the filing of his original Complaint (doc. # 10). That pleading named as Defendants " N.P. Klenke," " MD Creany," and " HSA Dolores Montoya," and invoked the court's subject matter jurisdiction under 42 U.S.C. § 1983. In his single claim for relief, Mr. Sherman alleged that the named Defendants had violated the Eighth Amendment through their deliberate indifference to his serious medical needs and, more specifically, the pain and suffering associated with a diagnosed hernia. On January 24, 2012, Mr. Sherman filed a motion (doc. # 12) in which he sought " permission to submit amended complaint," asked for the appointment of counsel, and requested " to be transferred to Arkansas Valley Correctional Facility" because of unspecified mistreatment that he had suffered " because of this lawsuit."

Also on January 24, 2012, Mr. Sherman filed an Amended Complaint (doc. # 11). This pleading recited the same Eighth Amendment claim against Defendants Klenke, Creany and Montoya, but also joined as defendants " Warden Temmee" at Fremont Correctional Facility (FCF), the " Mental Health Department" at FCF, " CHP (DOC Insurance Company, Medical)," the " DOC Mail Room Staff," and " Any unforseen Defendants." Plaintiff's first claim alleged a violation of the Eighth

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and Fourteenth Amendments by Defendant Klenke. The second claim of the Amended Complaint asserted a Fourteenth Amendment due process violation by CHP based upon its denial of his request for hernia surgery. The third claim alleged that mail room personnel improperly screened Plaintiff's outgoing mail in violation of the First Amendment after he told them he was " suing DOC because of my situation." Plaintiff's fourth claim alleged a due process violation based on his improper termination from a sex offender treatment program.

On January 31, 2012, Magistrate Judge Boyd Boland entered an Order Directing Plaintiff to File Second Amended Complaint (doc. # 14). Magistrate Judge Boland's Order explained that Mr. Sherman could not sue the State of Colorado or its entities, such as the mental health department of the Fremont Correctional Facility, as the State of Colorado and its entities are protected by Eleventh Amendment immunity. Moreover, Magistrate Judge Boland found that Plaintiff's Amended Complaint failed to set forth a short and plain statement of his claims showing that he was entitled to relief. Accordingly, Mr. Sherman was given 30 days to file a second amended complaint that complied with the pleading requirements of Fed.R.Civ.P. 8.

Plaintiff filed his Second Amended Complaint (doc. # 22) on March 19, 2012. This pleading named as Defendants William Klenke, N.P., Timothy Creany, M.D., Dolores Montoya, H.S.A., Stephen Krebs, M.D., Correctional Health Partners (CHP) and John Doe. The first claim in the Second Amended Complaint alleged an Eighth Amendment violation by Defendant Klenke based on his refusal " to give the plaintiff proper medical care during his treatment for his hernia." The second claim asserted that Defendants Montoya and Creany were deliberately indifferent in violation of the Eighth Amendment by " refus[ing] to supervise N.P. Klenke" even though they knew Mr. Sherman had a serious medical need. That same claim alleged that Dr. Creany had improperly denied Plaintiff's step 2 grievance and that Defendant Montoya " continues to ignore Mr. Sherman's request to be seen by a different provider." In the third claim, Plaintiff alleged that Defendant Krebs, " the chief medical doctor for Correctional Health Partners," violated the Eighth Amendment by twice denying a recommendation that his hernia be treated surgically, thereby " causing the plaintiff unnecessary, prolonged pain and suffering." Plaintiff's fourth claim alleged common law negligence on the part of Dr. Krebs, while the fifth claim sought to hold Correctional Health Partners vicariously liable for the negligence of its employee, Dr. Krebs. Eighteen days after filing his Second Amended Complaint, Mr. Sherman asserted virtually the same claims in a Third Amended Complaint (doc. # 24).

On June 14, 2012, Correctional Health Partners moved to dismiss the Third Amended Complaint. Correctional Health Partners argued that Mr. Sherman's 42 U.S.C. § 1983 claims failed because the denial of his desired medical treatment did not amount to deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment, Mr. Sherman had not alleged any custom, policy or practice of CHP that violated the Eighth Amendment, and that his negligence and vicarious liability claims brought under Colorado common law must be dismissed for failure to file a certificate of review as required under C.R.S. § 13-20-602.[1]

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On July 9, 2012, Defendants Klenke, Creany, Montoya and Krebs filed their own Motion to Dismiss (doc. # 52) the Third Amended Complaint. First, Defendants argued that any claims asserted against them in their official capacities were barred by Eleventh Amendment immunity. Second, Defendants Montoya and Creany insisted that the Third Amended Complaint failed to allege any facts that would suggest these two defendants personally participated in any constitutional violation. Third, Defendants Klenke and Krebs argued that Mr. Sherman had not alleged sufficient facts to plausibly show that they had been deliberately indifferent to his medical needs. Finally, Defendants maintained that Mr. Sherman's claim for compensatory damages was barred by the Prison Litigation Reform Act, based on his failure to assert a physical injury caused by Defendants' alleged conduct, and that his demand for punitive damages was not supported by facts that would suggest that Defendants' conduct was motivated by " evil motive or intent" or involved " reckless or callous indifference to the federally protected rights of others."

On August 6, 2012, Mr. Sherman filed separate responses (doc. ## 64 and 65) to the pending motions to dismiss, as well as a new Motion for Leave to Amend Complaint (doc. # 63). In moving for leave to amend, Mr. Sherman suggested that his next pleading would " be more specific with facts to demonstrate how the defendant's (sic) violated his Eighth Amendment Constitutional rights" and would " clarify how the defendant's (sic) where (sic) deliberately indifferent to [his] serious medical needs." Defendant Correctional Health Partners filed a Rely in Support of Motion to Dismiss (doc. # 68) on August 20, 2012, and Defendants Klenke, Creany, Montoya and Krebs filed their Reply (doc. # 72) on August 27, 2012. All Defendants opposed Mr. Sherman's motion for leave to file a Fourth Amended Complaint.

After a hearing on February 6, 2013, this court made findings of fact and recommendations from the bench with regard to Defendants' motions to dismiss. I specifically found that:

Mr. Sherman has alleged facts which reasonably support a plausible contention that both Mr. Klenke and Ms. Montoya were aware that Mr. Sherman was not getting the medication that he felt was appropriate and that Mr. Sherman was not getting the medication that his specialist (a doctor that he had been sent to see) felt was appropriate. It appears that Mr. Sherman's repeated requests for stronger medication were simply denied. On that basis, the court recommends that this narrow Eighth Amendment claim against defendants Klenke and Montoya proceed. However, the only allegation that the court can find with respect to Dr. Creany is that

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he reviewed and denied a grievance and that, in the court's view, fails to support a claim under the Eighth Amendment with respect to Dr. Creany[.] On the same basis, the court finds that the Plaintiff's Third and Fourth Amended Complaint do not properly allege a claim against Dr. Krebs and Correctional Health Partners either under the Eighth Amendment or under the Colorado Common Law on negligence. The court further finds that Mr. Sherman has not provided the required certificate of review. The court is recommending that Mr. Sherman be allowed 30 days to provide the necessary certificate of review.

See doc. # 81. Accordingly, I recommended that Claim Two of the Fourth Amended Complaint be dismissed with prejudice as against Defendant Creany; that Claim Three be dismissed with prejudice, and that Claim Four be dismissed if Mr. Sherman failed to submitted the required certificate of review. I granted Mr. Sherman's motion to file a Fourth Amended Complaint only " to the extent it encompasses an Eighth Amendment claim against [Defendants Klenke and Montoya] based on their alleged failure to provide or change Mr. Sherman's medication." At the conclusion of the February 6, 2013 hearing, I directed that Mr. Sherman be provided with a transcript of the proceedings and advised Plaintiff of his right to file an objection to my Recommendation, pursuant to Fed.R.Civ.P. 72. Mr. Sherman filed an Objection to the Findings and Recommendations of the Magistrate Judge (doc. # 89) on March 18, 2013.

In an Order (doc. # 91) issued on March 28, 2013, Judge Brimmer accepted my Recommendation and dismissed with prejudice Plaintiff's Second and Third Claims for Relief against Drs. Creany and Krebs, as well as Mr. Sherman's claim against the John Doe defendant. Judge Brimmer dismissed without prejudice Plaintiff's Fourth Claim for Relief against Defendant Correctional Healthcare Partners, but directed that Mr. Sherman must file a certificate of review within thirty days of his Order.[2] Finally, Judge Brimmer permitted Mr. Sherman to file a Fourth Amended Complaint, but ruled that the newly filed pleading would be " limited to Eighth Amendment claims against William Klenke and Dolores Montoya based upon allegations that they failed to provide or change plaintiff's medication." [3]

The claims remaining against Defendants Klenke and Montoya are quite specific. Claim One of the Fourth Amended Complaint alleges that Defendant Klenke " had actual knowledge that Mr. Sherman

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was in severe debilitating pain and that the method of trying to alleviate the pain was ineffective." See Fourth Amended Complaint, at ¶ 36. Nevertheless, " Defendant Klenke refused to provide appropriate, adequate, effective pain medication" and denied Plaintiff's request " to be given a medical lay-in from work due to the severe pain and the fear that his condition could be worsened by working." Id. at ¶ ¶ 39 and 40. Plaintiff contends that Defendant Klenke's " actions or inactions . . . demonstrate deliberate indifference to Mr. Sherman's serious medical condition in violation of the Eighth Amendment." Id. at ¶ 41.

Claim Two of the Fourth Amended Complaint alleges that " Defendant Montoya . . . had actual personal knowledge that Mr. Sherman was denied needed surgery, was suffering debilitating pain, and that his condition had been exacerbated by his having to work." Id. at ¶ 45. The Fourth Amended Complaint further avers that Defendant Montoya " was aware that defendant Klenke refused to give Mr. Sherman pain medication requested by Dr. Rieger, even though the current course of treatment was not working," and that Defendant Montoya " had the ultimate responsibility and duty of ensuring that all inmate patients received adequate medical care." Id. at ¶ ¶ 46 and 50. Claim Two alleges that Defendant Montoya violated Plaintiff's Eighth Amendment rights by " allowing Defendant Klenke to continue a course of treatment which was obviously having no effect," and by denying or ignoring Mr. Sherman's " repeated requests to be treated by another PA in the same clinic." Id. at ¶ ¶ 53 and 54.

ANALYSIS

Summary judgment is appropriate " if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c)(2). See also Devery Implement Company v. J.I. Case Company, 944 F.2d 724, 726 (10th Cir. 1991); Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991). To meet the burden of persuasion required to support summary judgment under Rule 56, the movant must " point to those portions of the record that demonstrate an absence of a genuine issue of material fact, given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A fact is " material" if under the substantive law it could have an effect on the outcome of the lawsuit. Equal Employment Opportunity Comm'n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

While the moving party bears the initial burden of showing that there is an absence of any issues of material fact, Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not negate the non-movant's claim. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Once the moving party points to an absence of evidence to support the non-moving party's claim, the non-moving party may not rest upon his pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. See Fed.R.Civ.P. 56(e). See also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).

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The court must construe the factual record and reasonable inferences therefrom in the light most favorable to the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). The court must determine " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.

To defeat a properly supported motion for summary judgment, there must be evidence upon which the jury could reasonably find for the plaintiff. Conclusory allegations will not create a genuine issue of material fact necessitating trial. Dobson v. City and County of Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999). Cf. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (acknowledging " conclusory allegations without specific supporting facts have no probative value" ). Evidence that is not significantly probative and immaterial factual disputes will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo. 1998). The demonstration of " some metaphysical doubt as to the material facts" is not sufficient to establish a genuine issue of material fact. Foreman v. Richmond Police Department, 104 F.3d 950, 957 (7th Cir. 1997). " The very purpose of a summary judgment action is to determine whether trial is necessary." White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In short, this court must determine whether Mr. Sherman has come forward with specific facts to overcome Defendants' Motion for Summary Judgment.

A. The Factual Record

The parties have attached a number of exhibits to their summary judgment briefs. Defendants have tendered the Affidavit of Anthony DeCesaro, a Step 3 Grievance Officer, (Exhibit A-1) together with copies of related CDOC administrative regulations and grievance records; the Affidavit of William Klenke (Exhibit A-2) along with pertinent excerpts from Mr. Sherman's medical records; the Affidavit of Dr. Erik Rieger (Exhibit A-3) with referenced medical records; and the Affidavit of Dolores Montoya (Exhibit A-4) and referenced attachments. Mr. Sherman attached to his Response to Motion for Summary Judgment excerpts from Defendants' responses to written discovery requests and interrogatories (Exhibits 1 and 2); his own affidavit (Exhibit 3) with attachments consisting of a summary exhibit of Mr. Sherman's " repeated requests for pain medication . . . and the repeated denials of pain relief by defendants" and grievances submitted by other inmates relating to Defendant Klenke's responses to their complaints of pain; the Affidavit of Debbie Sherman, his mother, (Exhibit 4) describing her communications with Defendant Montoya; excerpts from CDOC Clinical Standards and Procedures (Exhibit 5); and Affidavits from Inmates Donald Reynolds and Jesus Epps (Exhibits 6 and 7) recounting Defendant Klenke's responses to their requests for pain medication.

Upon careful consideration of Defendants' Motion for Summary Judgment and Mr. Sherman's Response, as well as the exhibits proffered by both sides, it appears that the following facts are undisputed.

Mr. Sherman arrived at the Fremont Correctional Facility on March 29, 2010. See Defendants' Statement of Material Facts, at ¶ 8 and Plaintiff's Response, at 2. On June 6, 2011, Plaintiff was seen in clinic by Defendant Klenke for complaints of a hernia. At that time, PA Klenke conducted a physical examination and determined that Mr. Sherman had a right inguinal hernia that was reducible.[4] See Defendants'

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Statement of Material Facts, at ¶ 10 and Plaintiff's Response, at 2. To treat Mr. Sherman's hernia, Defendant Klenke prescribed Colace and Psyllium Fiber which help to reduce straining and discomfort some patients experience during bowel movements. See Defendants' Statement of Material Facts, at ¶ 13 and Plaintiff's Response, at 2. Defendant Klenke issued Plaintiff an abdominal binder for support, which helps to hold the hernia in place throughout the day so that the patient does not strain, and also issued work restrictions to Mr. Sherman to avoid heavy lifting. Plaintiff was offered a lower bunk restriction, which he refused. See Defendants' Statement of Material Facts, at ¶ 14 and Plaintiff's Response, at 2.

At the time of the June 6, 2011 consult, Mr. Sherman had a current prescription for Motrin, which PA Klenke believed to be sufficient for his complaints of pain. See Defendants' Statement of Material Facts, at ¶ 16 and Plaintiff's Response, at 2. On June 9, 2011, Defendant Klenke increased Mr. Sherman's prescription for Motrin based on Plaintiff's complaints of on-going pain. See Defendants' Statement of Material Facts, at ¶ 17 and Plaintiff's Response, at 2.

Following the June 6, 2011 consultation, PA Klenke submitted a request for a consultation with an outside surgeon in order to obtain a second opinion on Plaintiff's hernia. See Defendants' Statement of Material Facts, at ¶ 15 and Plaintiff's Response, at 2. This request was denied on June 13, 2011, and PA Klenke appealed that denial on June 14, 2011. See Defendants' Statement of Material Facts, at ¶ 21 and Plaintiff's Response, at 2.

On June 13, 2011, Plaintiff returned to the clinic and was seen by PA Klenke for complaints associated with his hernia. Defendant Klenke conducted a physical examination of Mr. Sherman's hernia, which had remained unchanged. See Defendants' Statement of Material Facts, at ¶ 18 and Plaintiff's Response, at 2. Id. at ¶ 19. Mr. Sherman's medical records reflect that on June 13, 2013, he was prescribed " Tylenol #3 for pain management." On June 21, 2011, PA Klenke extended Mr. Sherman's Tylenol #3 prescription for an additional three days (or until June 24, 2011). See Defendants' Statement of Material Facts, at ¶ 22 and Plaintiff's Response, at 2.

On June 23, 2011, Mr. Sherman again was seen by PA Klenke for complaints associated with his hernia. Defendant Klenke conducted a physical examination and determined that Mr. Sherman's hernia was unchanged in size and was non-reducible. See Defendants' Statement of Material Facts, at ¶ 23 and Plaintiff's Response, at 2. Following this examination, Defendant Klenke extended Plaintiff's prescription for Tylenol #3 and increased the dosage to two tablets. See Defendants' Statement of Material Facts, at ¶ 24 and Plaintiff's Response, at 2. Id. at ¶ 23.

Defendant Klenke's request for a surgical consultation was approved on June 23, 2011. That same day, PA Klenke contacted Dr. Rieger's office to obtain an appointment for Mr. Sherman. See Defendants' Statement of Material Facts, at ¶ 25 and Plaintiff's Response, at 2. On June 27,

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2011, Plaintiff was seen by Dr. Rieger who recommended surgical repair of the hernia. The parties agree that surgical repair was the only recommendation made by Dr. Rieger on June 27, 2011.[5] See Defendants' Statement of Material Facts, at ¶ 26 and Plaintiff's Response, at 2.

On June 29, 2011, PA Klenke renewed Mr. Sherman's prescription for Tylenol #3 through July 6, 2011, and then on July 5, 2011, renewed the prescription yet again through July 12, 2011. See Defendants' Statement of Material Facts, at ¶ ¶ 28-29 and Plaintiff's Response, at 3. Mr. Sherman was seen by PA Klenke on July 6, 2011 for complaints of a second hernia on his left side. Defendant Klenke conducted a physical examination and determined that Mr. Sherman did have a second smaller inguinal hernia on his left side that was reducible. See Defendants' Statement of Material Facts, at ¶ 30 and Plaintiff's Response, at 3. During this appointment, Sherman sought additional pain medications, and Defendant Klenke instructed Plaintiff to alternate Tylenol #3 and Motrin as needed for pain. See Defendants' Statement of Material Facts, at ¶ 31 and Plaintiff's Response, at 3. After his July 6, 2011 examination of Mr. Sherman, Defendant Klenke contacted central scheduling to inquire into the status of Dr. Rieger's surgical request. Defendant also prescribed Mr. Sherman Motrin through August 5, 2011. See Defendants' Statement of Material Facts, at ¶ 32 and Plaintiff's Response, at 3.

On July 11, 2011, Defendant Klenke received notification from Dr. Rieger's office that the request for surgery had been denied. See Defendants' Statement of Material Facts, at ¶ 33 and Plaintiff's Response, at 3. On July 13, 2011, PA Klenke extended Mr. Sherman's Tylenol #3 prescription until July 18, 2011. The dosage was decreased to one tablet. See Defendants' Statement of Material Facts, at ¶ 34 and Plaintiff's Response, at 3.[6] On July 18, 2011, Mr. Sherman again saw Defendant Klenke for complaints associated with his hernia. During this consultation Sherman stated, " I don't care as much about the pain ...I just want this fixed...I haven't had a stool in 9 days." See Defendants' Statement of Material Facts, at ¶ 36 and Plaintiff's Response, at 3. At the same time, Defendant Klenke noted that Mr. Sherman was visibly relaxed while discussing his care. Defendant prescribed Magnesium Hydroxide, a stool softener, for Sherman's complaints of constipation. See Defendants' Statement of Material Facts, at ¶ 37 and Plaintiff's Response, at 3. On July 18, 2011, Defendant Klenke contacted Dr. Rieger's office concerning Plaintiff's ongoing complaints of pain and constipation and informed Dr. Rieger's nurse that Mr. Sherman wanted the denial of his surgery to be appealed. See Defendants' Statement of Material Facts, at ¶ 38 and Plaintiff's Response, at 3. d. at ¶ 35. On July 18, 2011, PA Klenke faxed a letter to Correctional Health Partners concerning Mr. Sherman's ongoing symptoms to assist in the appeal of the denial of surgery.

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See Defendants' Statement of Material Facts, at ¶ 39 and Plaintiff's Response, at 3.

On August 10, 2011, PA Klenke extended Mr. Sherman's prescription for Motrin until October 17, 2011. See Defendants' Statement of Material Facts, at ¶ 47 and Plaintiff's Response, at 4. The next day, Defendant Klenke ordered a prescription for Magnesium Hydroxide to address Mr. Sherman's complaints of constipation. See Defendants' Statement of Material Facts, at ¶ 48 and Plaintiff's Response, at 4. On August 16, 2011, Sherman was seen by Defendant Klenke for complaints associated with his hernia. Defendant Klenke conducted a physical examination of Sherman and determined that the right hernia had grown in size. See Defendants' Statement of Material Facts, at ¶ 49 and Plaintiff's Response, at 4. Following this examination, PA Klenke submitted a new request for a surgical consultation, which was approved on August 25, 2011. See Defendants' Statement of Material Facts, at ¶ 50 and Plaintiff's Response, at 4. On September 14, 2011, Mr. Sherman was seen by PA Klenke for complaints associated with his hernia. During a physical examination, Defendant Klenke determined that both hernias had not changed in size. See Defendants' Statement of Material Facts, at ¶ 51 and Plaintiff's Response, at 4. During that same appointment, Mr. Sherman asked for Tylenol #3 for pain management. Defendant instead advised Mr. Sherman to use Motrin for pain management. On that same occasion, PA Klenke noted that Plaintiff was not wearing the abdominal belt he was issued for support. See Defendants' Statement of Material Facts, at ¶ 52 and Plaintiff's Response, at 4. On September 27, 2011, PA Klenke renewed Mr. Sherman's prescriptions for Magnesium Hydroxide and Psyllium Fiber. See Defendants' Statement of Material Facts, at ¶ 53 and Plaintiff's Response, at 4. On September 29, 2011, Mr. Sherman was seen by Dr. Rieger, who recommended surgical repair of Sherman's right hernia. Dr. Rieger did not, however, recommend emergency surgery, which indicated that Plaintiff's hernias were not presenting any serious risks. See Defendants' Statement of Material Facts, at ¶ 54 and Plaintiff's Response, at 4.[7]

On October 24, 2011, Mr. Sherman was seen by PA Klenke for complaints associated with his hernia, at which time he requested " stronger meds." Defendant Klenke noted that Plaintiff was not wearing his abdominal belt for support. See Defendants' Statement of Material Facts, at ¶ 56 and Plaintiff's Response, at 4. During that same examination, Defendant Klenke increased Mr. Sherman's prescription for Motrin. See Defendants' Statement of Material Facts, at ¶ 57 and Plaintiff's Response, at 4. Plaintiff underwent surgical repair of his right inguinal hernia on November 2, 2011. See Defendants' Statement of Material Facts, at ¶ 58 and Plaintiff's Response, at 4. Sherman was provided Tylenol #3 in accordance with Dr. Rieger's recommendation.[8] See Defendants'

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Statement of Material Facts, at ¶ 60 and Plaintiff's Response, at 4. 8 Mr. Sherman was seen by Dr. Rieger on November 17, 2011, for a follow-up post-operative appointment. Plaintiff acknowledges that this was the first and only time that Dr. Rieger ever provided a written recommendation that Plaintiff receive Tylenol #3. See Defendants' Statement of Material Facts at ¶ 59 and Plaintiff's Response, at 4.

Defendant Montoya held the title of Health Services Administrator at FCF from March 1, 2011 to June 20, 2012. See Defendants' Statement of Material Facts, at ¶ 63 and Plaintiff's Response, at 4. As a Health Services Administrator, Ms. Montoya's responsibilities primarily focused on the administration and operations of the medical clinic. See Defendants' Statement of Material Facts, at ¶ 64 and Plaintiff's Response, at 4. Defendant Montoya did not personally provide medical treatment to patients nor was she involved in the treatment decisions made by clinical medical providers with regard to the patients seen in the medical clinic. See Defendants' Statement of Material Facts, at ¶ 65 and Plaintiff's Response, at 4. Ms. Montoya was not qualified to issue prescriptions for patients and was not authorized to change any prescriptions issued by clinical medical staff. See Defendants' Statement of Material Facts, at ¶ 66 and Plaintiff's Response, at 4. Treatment decisions concerning a patient's medical care and/or medications to be prescribed are decisions made exclusively by the clinical medical staff. See Defendants' Statement of Material Facts, at ¶ 67 and Plaintiff's Response, at 4. As a Health Services Administrator, Defendant Montoya did have the authority to change a patient's health care provider if it appeared that the patient was not receiving appropriate medical care. See Defendants' Statement of Material Facts, at ¶ 68 and Plaintiff's Response, at 4.

B. The Claim Against Defendant Klenke

The Eighth Amendment prohibits the infliction of " cruel and unusual punishments." U.S. Const. Amend. VIII. The Eighth Amendment prohibits prison officials from being deliberately indifferent to the serious medical needs of prisoners in their custody. See Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (" [D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." ) (internal quotation marks and citation omitted).

An Eighth Amendment claim involves " a two-pronged inquiry, comprised of an objective component and a subjective component." Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). " Under the objective inquiry, the alleged condition must be sufficiently serious to constitute a deprivation of constitutional dimension." Id. (internal quotation marks and citation omitted). An objectively serious medical need or condition is " one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).[9]

Where a plaintiff is alleging a delay in medical care, he must show that the alleged delay resulted in substantial harm.

That " substantial harm" can be the ultimate physical injury caused by the prisoner's illness, so long as the prisoner can

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show that the more timely receipt of medical treatment would have minimized or prevented the harm. The " substantial harm" can also be an intermediate injury, such as the pain experienced while waiting for treatment and analgesics. Although " not every twinge of pain suffered as a result of delay in medical care is actionable," when the pain suffered during the delay is substantial, the prisoner " sufficiently establishes the objective element of the deliberate indifference test."

Kikumura v. Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006) (internal quotation marks and citation omitted), overruled on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008).

Under the subjective inquiry, the defendant must have acted with a " sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). An inmate's complaint of inadequate medical care amounts to an Eighth Amendment claim if the inmate alleges " acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. To meet the subjective component of an Eighth Amendment claim, a plaintiff must establish the defendant " knew he faced a substantial risk of harm and disregarded that risk, 'by failing to take reasonable measures to abate it.'" Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Farmer, 511 U.S. at 847). For a prison official to be deliberately indifferent under the Eighth Amendment, " the official must 'know[] of and disregard[] an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must draw the inference.'" Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 809 (10th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

For purposes of the pending motion, this court finds that Mr. Sherman's hernia and its associated pain constituted a serious medical condition that satisfied the objective prong of the Eighth Amendment standard. Although Defendant Klenke initially diagnosed Mr. Sherman as having a right inguinal hernia that was reducible, it is undisputed that PA Klenke requested a surgical consultation, that Dr. Rieger recommended surgical repair, and that Dr. Rieger initiated an appeal of the initial surgery denial. Cf. Horton v. Ward, 123 F.App'x 368, 372 (10th Cir. 2005) (finding " no trouble" in concluding that plaintiff's umbilical hernia was a serious medical problem where the record showed the hernia was increasing in size and the plaintiff had been placed on a waiting list for surgery); Heard v. Sheahan, 148 F.App'x 539, 540 (7th Cir. 2005) (" a hernia can be a serious medical condition" and " inguinal hernias can lead to life-threatening complications" ).[10][11]

Mr. Sherman's claim against Defendant Klenke fails under the subjective prong of the Eighth Amendment test. Based upon my review of the available medical records, it appears that PA Klenke saw Mr. Sherman relative to his hernia and reports of continued pain on no less than 13 occasions

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between June 6, 2011 and October 24, 2011. This court is not discounting at all Mr. Sherman's claim of persistent and worsening pain during this five month period, or the sincerity of Plaintiff's belief that the severity of his pain required elevated or different types of medication. However, the medical records reflect that during that same 4 month period, PA Klenke prescribed various medications in response to Mr. Sherman's complaints of pain and constipation, including Tylenol #3 (pain), Motrin (pain), Docusate (stool softener), Psyllium Fiber (stool softener), Magnesium Hydroxide (stool softener), and Tegretol (pain). In addition, Defendant Klenke noted that Mr. Sherman should not do any heavy lifting, directed that Mr. Sherman be provided with a truss for support, and directed that he be provided with a lower bunk. While it is undisputed that Defendant Klenke changed Plaintiff's levels and types of pain medication over time (increasing or decreasing dosages), there is nothing in the available record that would suggest he acted with deliberate indifference to Mr. Sherman's requests for help.[12] In short, Plaintiff's First Claim is premised on Defendant Klenke's failure to accede to Mr. Sherman's request for additional or different pain medication, and additional work restrictions.

The Constitution does not guarantee a prisoner the treatment of his choice. Ledoux v. Davies, 961 F.2d at 1537 (citations omitted). Cf. Henderson v. Secretary of Corrections, 518 F.2d 694, 695 (10th Cir. 1975) (" prisoner's right is to medical care not to the type or scope of medical care which he personally desires" ); Feder v. Sposato, No. 11-CV-193 (JFB)(WDW), 2014 WL 1801137, at *9 (E.D.N.Y. May 7, 2014) (" where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, [a court] will not second guess the doctors" ); Baez v. Falor, Civil. No. 09-1149, 2012 WL 4356768, at *34 (W.D. Pa. Sept. 24, 2012) (" mere disagreements over medical judgment do not state Eighth Amendment claims" ). " It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010). Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (citation omitted). Cf. Brinton v. Gaffney, 554 F.Supp. 388, 389 (E.D. Pa. 1983) (noting that an Eighth Amendment claim is not

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asserted " if a prisoner's complaint is directed at the wisdom or quality of the medical care he received in prison, even if that treatment is so negligent as to amount to medical malpractice" ).

Even when construed in a light most favorable to the Plaintiff, the allegations in the First Claim and the evidence presented by the parties reveals a dispute over the adequacy or appropriateness of prescribed palliative care. That dispute does not rise to the level of an Eighth Amendment violation. See, e.g., Feder v. Sposato, 2014 WL 1801137, at *9 (" [t]he failure to provide stronger pain medication does not constitute deliberate indifference" ); Jacobs v. McVea, Civ. No. 14-552, 2014 WL 2894286, at *7 (E. D. La. June 25, 2014) (" While it is evident that plaintiff was unhappy with the over-the-counter pain medication, a prisoner has no right to be prescribed a particular medication for pain, and the fact that he disagrees with the prison medical staff concerning which pain medication is appropriate is not actionable under § 1983" ); Womack v. Bakewell, No. 10-cv-2778-DEB, 2013 WL 3148467, at *9 (E.D. Cal. June 19, 2013) (held that plaintiff's disagreement with defendants about the type and strength of his pain medication did not reflect a conscious disregard of plaintiff's serious medical needs; plaintiff's preference for stronger medication " represents precisely the type of difference between a lay prisoner and medical personnel that is insufficient to establish a constitutional violation" ); Gibson-Riggs v. Grant County Detention Center, Civ. No. 05-148-DLB, 2010 WL 1050071, at *6-7 (E.D. Ky. March 18, 2010) (in granting defendants' motion for summary judgment, held that plaintiffs' allegations that they did not receive their preferred medications " sounds in negligence, which is not actionable under § 1983; " concluded that plaintiffs' claims amounted to nothing more than a disagreement with the course of treatment they received).

I acknowledge that attached to Mr. Sherman's Response are grievances and affidavits provided by other inmates. In providing these materials, Mr. Sherman contends that " Klenke simply turned a cold shoulder to the plaintiff's suffering, and has seemingly done so with other inmates as well." See Plaintiff's Response, at 15. The court understands that other inmates have criticized the manner in which Defendant Klenke responded to their reports of pain or requests for pain medication.

Under Rule 56, a non-moving party must rely upon admissible evidence to establish a genuine issue of material fact. Rule 404(b)(1) excludes evidence of a person's character or character trait to prove that on a particular occasion the person acted in accordance with that character or trait. See Fed.R.Evid. 404(b). Cf. Guarantee Insurance Co. v. Brand Management Service, Inc., No. 12-61670-CIV, 2013 WL 6728177, at *2 (S.D. Fla. Dec. 20, 2013) (in ruling on a pending motion for summary judgment, the court refused to consider evidence of defendant's prior involvement with an unrelated litigant and separate contract; held that this was " pure propensity evidence" prohibited by Rule 404(b)); Kee v. Louisville Metro Department of Corrections, Civ. No. 11CV-P544-M, 2013 WL 5447766, at *4 (W.D. Ky. Sept. 30, 2013) (on a motion for summary judgment, held that the " similar acts" evidence proffered by plaintiff was being used to prove the defendant's " character" and was prohibited under Rule 404(b)). Mr. Sherman cannot prove that PA Klenke was deliberately indifferent to his particular medical condition by showing that Defendant Klenke did not authorize pain for inmates under circumstances that may bear little, if any, similarity to

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Mr. Sherman's hernia. At best, those inmate grievances and affidavits suggest other occasions where a medical practitioner and patient disagreed over a particular course of treatment. Cf. Ortiz v. Reynolds, No. 10-cv-1380 MCE EFB, 2013 WL 246858, at *2 (E.D. Cal. Jan. 22, 2013) (plaintiff-inmate alleged that the defendant physician's assistant denied him adequate medical care; in response to defendant's motion for summary judgment, plaintiff offered declarations from two fellow inmates who claimed similar experiences with the defendant; held that the inmates were not qualified to offer medical opinions and their lay testimony was only marginally relevant). Mr. Sherman's inmate affidavits will not suffice to defeat Defendant Klenke's motion for summary judgment. " Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

Based upon the evidence presented by the parties, I do not find that Mr. Sherman has presented a genuine issue of material fact under the subjective prong of the Eighth Amendment. Accordingly, I recommend that judgment be entered in favor of Defendant Klenke on the First Claim of the Fourth Amended Complaint.

C. The Claim Against Defendant Montoya

In his Second Claim, Mr. Sherman argues that Ms. Montoya, as a supervisor, was deliberately indifferent in violation of his Eighth Amendment rights by allowing Defendant Klenke " to continue an inadequate course of treatment which was obviously having no effect," by " not responding to [Mr. Sherman's] pleas for help," or by denying or ignoring his " repeated requests to be treated by another PA within the same clinic." Essentially, Plaintiff contends that " as the Health Services Administrator" who had " the ultimate responsibility and duty of ensuring that all inmate patients received adequate medical care," Defendant Montoya violated his rights by failing to take reasonable steps to abate Defendant Klenke's unconstitutional conduct.

Given my recommendation regarding Claim One, the separate claim against Defendant Montoya also must be dismissed.[13] To the extent that Mr. Sherman is basing the Second Claim on Ms. Montoya's alleged failure to exercise her supervisory authority, that claim cannot survive in the absence of an underlying constitutional violation by the subordinate employee. See Gray v. University of Colorado Hospital Authority, 672 F.3d 909, 919 n. 7 (10th Cir. 2012) and cases cited therein. To establish supervisory liability, a plaintiff must come forward with evidence that establishes an affirmative link between the supervisor and the underlying constitutional violation. Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010). It necessarily follows that supervisory liability is contingent upon a finding of liability by the subordinate. Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009) (defendant could not be found liable under a theory of supervisory liability " when there was no violation of [plaintiff's] constitutional rights" ).

It is undisputed that Defendant Montoya did not personally provide medical treatment to patients, was not involved in treatment decisions made by clinical medical providers at FCF, and was not qualified

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or authorized to issue medication prescriptions or change any prescriptions issued by clinical medical staff. See Defendants' Statement of Material Facts, at ¶ ¶ 65 and 66, and Plaintiff's Response, at 4. Although Ms. Montoya held the title of Health Services Administrator at the FCF and was responsible for the administration and operations of the medical clinic, Mr. Sherman concedes that she did not have the authority to override decisions regarding pain medication that were the product of medical judgment. Cf. Kneen v. Zavaras, Civ. No. 10-cv-1284-RBJ-MEH, 2012 WL 5493854, at *11(D. Colo. Nov. 13, 2012) (Health Services Administrator " not qualified to override a treating doctor's decisions that implement the exercise of medical judgment." ). Defendant Montoya was not deliberately indifferent to Mr. Sherman's condition simply because she declined to override Defendant Klenke's medication decisions. Cf. Wall v. Dauphin County, 167 F.App'x 309, Id. at *2 (3rd Cir. 2006) (" [i]f a prisoner is under the care of medical experts, a non-medical prison official will generally be justified in believing that the prisoner is in capable hands" ); Heard, 148 F.App'x at 540-41 (noting that jail administrators " are generally entitled to rely on the judgment of medical professionals because the question of whether a particular medical treatment is warranted is a 'classic example of a matter for medical judgment.'" ).

Mr. Sherman also contends that Ms. Montoya violated his Eighth Amendment rights by failing to honor his request for a different medical practitioner. " While a prisoner/detainee is guaranteed a certain level of medical treatment, he is not guaranteed his choice of doctor." Briscoe v. Department of Corrections, No.070cv-0320 AWI WMW, 2009 WL 900721, at *4 (E.D. Cal. March 31, 2009). See also Brownlow v. Chavez, 871 F.Supp. 1061, 1064 (S.D. Ind. 1994) (noting that the Eighth Amendment does not guarantee a prisoner's choice of a physician). In the absence of any underlying constitutional violation by PA Klenke, Ms. Montoya cannot be liable under the Eighth Amendment for exercising her administrative authority in making staffing decisions.

CONCLUSION

For the foregoing reasons, I recommend that Defendants' Motion for Summary Judgment (doc. # 146) be GRANTED and that judgment be entered in favor of Defendants William Klenke and Dolores Montoya.

Advisement to the Parties

Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. " [A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate

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judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the " firm waiver rule" ); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).


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