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Cox v. Zavislan

United States District Court, D. Colorado

October 23, 2014

RONALD M. COX, Plaintiff,


RAYMOND P. MOORE, District Judge.

This matter is before the Court on United States Magistrate Judge Michael E. Hegarty's Recommendation ("Recommendation") (ECF No. 119) that the Court grant Defendants Zavislan and Reaux's motion for summary judgment (ECF No. 106). Plaintiff Ronald Cox filed timely objections to parts of the Recommendation ("Objection") (ECF No. 130).

For the reasons stated below, the Court OVERRULES the Objection to the Recommendation, ADOPTS the Magistrate Judge's Recommendation, and GRANTS Defendants' motion for summary judgment.


A. Review of the Magistrate Judge's Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

B. Summary Judgment

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. The facts must be considered in the light most favorable to the nonmoving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Only admissible evidence may be considered when ruling on a motion for summary judgment. Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). "Conclusory and self-serving affidavits are not sufficient." Id. "[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is "not obligated to comb the record in order to make [Plaintiff's] arguments for [him]." See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). In the summary judgment context, a pro se litigant's verified complaint may be treated as an affidavit as long as it satisfies the standards for affidavits outlined in Rule 56 of the Federal Rules of Civil Procedure. Adams v. Dyer, 223 Fed.App'x 757, 764 n.7 (10th Cir. 2007) (citing Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988)).

Further, Local Rule 7.1(e) provides that "[e]very citation in a motion, response or reply shall include the specific page or statutory subsection to which reference is made." D.C. Colo. L. Civ. R. 7.1(e).

C. Pro Se Status

Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and other filings liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A court may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of different civil procedure rules. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Wells v. Krebs, Case No. 10 CV 00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted), affirmed and adopted in 2010 WL 4449729.


No party objects to the Magistrate Judge's recitation of the case's procedural history. Accordingly, the Court adopts and incorporates the procedural history included within the Recommendation as if set forth herein. (ECF No. 119 at 2-3.) Before the Court is only Plaintiff's Eighth Amendment claim of Defendants' deliberate indifference, in their individual capacities, to his serious medical needs. (ECF No. 119 at 3.)


Plaintiff's is an inmate with CDOC whose sole remaining claim in this case has been cast as whether Defendants "violated [his] Eighth Amendment rights by denying [him] previously prescribed medical treatment [for] his inadvertent ingestion of razor blades." (ECF No. 67 at 3.) Plaintiff's claim has also been characterized as "deliberate indifference to Plaintiff's serious medical needs." (ECF No. 119 at 3.) At its core, Plaintiff's claim is that he should not have been released to the general inmate population on June 7, 2011, following a period of hospitalization and confinement to a dry cell in connection with his inadvertent ingestion of razor blades. Instead, according to Plaintiff, he should have been returned to the hospital or remained in the dry cell as this, he contends, was medically prescribed.


For the Magistrate Judge's Findings of Fact (ECF No. 119 at 3-10) to which Plaintiff has not filed an objection, the Court adopts and incorporates those facts as if set forth in this Order. To aid comprehension of this matter, the Court briefly sets forth the minimal, pertinent factual background regarding Plaintiff's Eighth Amendment claim. The Court will address Plaintiff's multitude of factual objections in the Analysis section below.

Plaintiff is incarcerated with the Colorado Department of Corrections ("CDOC"). (ECF No. 14 at 2.) On May 28, 2011, Plaintiff reported that he believed he swallowed a razor blade implanted in a cookie that he had consumed. (ECF No. 106-1.) An on-call CDOC employee then referred Plaintiff to Denver Health Medical Center ("Denver Health") for x-rays. (ECF No. 106-1.)

Denver Health staff found that Plaintiff ingested foreign bodies, i.e., razor blades, and monitored Plaintiff from May 29, 2011 through June 4, 2011. (ECF Nos. 106-2, 106-3.) While at Denver Health, Denver Health x-rayed Plaintiff's abdomen four times. (ECF Nos. 106-4, 106-5, 106-6, 106-7, 106-9.) There are somewhat conflicting indications in the evidence as to whether one or two blades were ingested and as to whether one passed during the hospital stay. ( See ECF Nos. 106-6, 106-7, 106-10 at 1, 3.) Nonetheless, on June 4, 2011, a Denver Health physician assessed Plaintiff and determined that "[t]his patient needs continued close observation until the F[oreign] B[ody] passes. If he can [], be monitored at another facility by nursing & get daily AXR [x-ray], then transfer will be reasonable. Otherwise, he needs to stay @ CCMF until blades pass." (ECF No. 106-9.)

On June 4, 2011, Denver Health discharged Plaintiff to CDOC's Denver Reception and Diagnostic Center ("DRDC") Infirmary. ( See ECF Nos. 106-3; 106-8 at ΒΆΒΆ 10-11.) At the DRDC, Plaintiff was placed in a "dry cell" for further monitoring to determine if he passed the razor blade. (ECF Nos. 106-10 at 3; 106-11.) While in the dry cell from June 4, 2011 to June 7, 2011, CDOC clinical and security staff monitored Plaintiff and took daily x-rays of his abdomen. (ECF Nos. 106-10 at 4-8, 106-12, 106-13, 106-14, 106-15, 110 at 64.)

On June 7, 2011, CDOC released Plaintiff from the dry cell to the general inmate population. (ECF No. 106-16.) He was also seen by a CDOC infirmary nurse on that date. ( Id. ) On June 8, 2011, Plaintiff's abdomen was again x-rayed. (ECF No. 106-18.) The June 8, 2011 x-ray revealed that a density seen on a June 6, 2011 x-ray was no longer present in the Plaintiff, and the treating staff detected no foreign object in Plaintiff. (ECF No. 106-18.)

CDOC Administrative Regulations ("AR") provide a grievance process[1] for offenders to resolve a variety of issues, including issues related to health care concerns. (ECF Nos. 118-4, 118-5.) AR #850-04 provides that grievances not in compliance with CDOC's regulations will be denied on procedural grounds. (ECF No. 118-4 at 2.) "When a grievance is denied for a procedural error, the grievance officer shall certify in the response that the offender has not exhausted the grievance process." (ECF No. 118-5 at 5 (emphasis in original).) AR #850-04 provides that "each grievance shall address only one problem or complaint.... Problems that arise from the same incident or set of facts shall be grieved in one grievance.... A substantive issue or remedy may not be added at a later step if it has not been contained in each previous step of that particular grievance." (ECF No. 118-5 at 4.)

Plaintiff filed a grievance concerning razor blades allegedly implanted in his food, the co-pays charged for his medical care, and the medical care he received when a razor allegedly remained inside him. (ECF No. 106-25 at 3.) Plaintiff followed his grievance through steps 2 and 3 of the grievance procedure. (ECF No. 106-25 at 1-2.) At Step 3, a CDOC grievance officer denied Plaintiff's grievance because he failed to comply with the AR #850-04 concerning the scope of grievances, saying that Plaintiff's grievance contained multiple issues. (ECF No. 106-26.) As a ...

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