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Hammond v. Intervention, ICCS

United States District Court, D. Colorado

June 2, 2015

ANDREA HAMMOND, J.D., Plaintiff,
INTERVENTION, ICCS Intervention Community Correction Services, a subsidiary of Intervention, GREG KILDOW, CEO of Intervention, ALL THE BOARD OF DIRECTORS OF INTERVENTION, and GERI ANN ECHLENBERG, Manager at ICCS, Defendants.


Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendants’ Motion for Summary Judgment [filed March 29, 2015; docket #83]. Pursuant to 28 U.S.C. § 636(c)(1) and D.C. Colo. LCivR 72.2, the parties consented to the jurisdiction of this Court. See docket #55. The motion is fully briefed, and oral argument would not materially assist the Court in its adjudication. For the reasons that follow, the Court GRANTS the Defendants’ motion.


I. Procedural History

Plaintiff, proceeding pro se, initiated this action on January 28, 2014 against Intervention Community Correction Services (“ICCS”), Greg Kildow, CEO, All the Board of Directors of ICCS, and Geri Anna Echlenberg, [1] Case Manager at ICCS (collectively “Defendants”). Docket #1. Pursuant to a court order during initial review, Plaintiff subsequently filed an Amended Prisoner Complaint on February 26, 2014, then a Second Amended Complaint on March 24, 2014, and the operative Third Amended Complaint on August 5, 2014. Dockets ##11, 14, 49. On September 30, 2014, this Court granted the Defendants’ motion to dismiss Plaintiff’s Claim 2 for violation of the Fourteenth Amendment to the U.S. Constitution; Claim 3 for Duress; and Claim 4 for violation of the Americans With Disabilities Act (“ADA”), but allowed Plaintiff’s Claim 1 for violation of the Eighth Amendment to the U.S. Constitution to proceed. Docket #59.

The Plaintiff filed motions regarding discovery issues after the discovery cutoff, which the Court resolved on April 27, 2015. Meanwhile, the Defendants timely filed the present motion on March 29, 2015; however, based on disposition of the discovery issues, the Court allowed supplemental briefing, which was completed on May 14, 2015. Essentially, Defendants contend that Plaintiff cannot establish any genuine issue of material fact to allow her to proceed to trial. Plaintiff counters that certain medical records, once obtained, would reveal the truth of the allegations in her complaint and that the attached records demonstrate she suffered from asthma and she was instructed by a doctor at the time she was housed at Intervention that she should not be placed in a smoking room. Defendants reply that Plaintiff provided no evidence demonstrating a material issue concerning whether Intervention or its staff were deliberately indifferent or subjected her to cruel and unusual punishment.

Following a discovery motion hearing on April 27, 2015, the Court permitted the parties to file supplemental briefs. Defendants contend the Plaintiff’s allegations that she was exposed to second-hand smoke from the patio or from people smoking in the building are unfounded and the evidence shows otherwise. Plaintiff argues that Defendants’ evidence, particularly the photograph of the smoking patio, was “wrong” in that the tables shown in the photo were actually closer to the door leading into the building and both that door and the interior door were propped or held open so that smoke invaded the day room and laundry room “on a regular basis.” Moreover, she asserts the records of smoking violations provided by Defendants did not include the period Plaintiff resided at Intervention, and a record dated August 27, 2013 reflects Plaintiff’s case manager conceding that “ICCS has concerns about [Plaintiff’s report of cigarette smoke triggering a potentially serious asthma attack] due to the fact that they cannot stop people from smoking and cannot accommodate a non-smoking room.”

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to the Plaintiff, who is the non-moving party in this matter.[2]

1. Plaintiff, an incarcerated person, suffers from asthma; an asthma attack may be triggered by allergens. Third Amended Complaint (“TAC”), docket #49 at 5.

2. Plaintiff was seen at Wyoming Medical Center in March 2012 for an “acute allergic reaction with broncospasm”; she was in “significant distress” and required epinephrine to improve. Docket #96-1 at 4-6. The doctor refilled Plaintiff’s albuterol inhaler and gave her an EpiPen with one refill advising Plaintiff that she “needs to have this EpiPen with her at all times.” Id.

3. Plaintiff was a resident at Defendant Intervention Community Corrections Services’ (“ICCS”) Lakewood Facility, a community corrections program for women, from August 2, 2013 to August 30, 2013. Id.; see also Def. Exh. E, docket #83-6.

4. ICCS provides transition services from incarceration with the Colorado Department of Corrections (“CDOC”) back into the community. Residents, also known as “clients, ” reside at ICCS for the time remaining on their respective CDOC sentences prior to parole. They are required to abide by all ICCS rules and regulations, or face discipline under the Code of Penal Discipline, which may result in their return to the CDOC. Affidavit of Kristin Heath, March 27, 2015 (“Heath Affadavit”), ¶ 6, docket #83-2.

5. On arrival, Plaintiff was listed as having allergies, asthma, and respiratory problems, and as taking required medication including Neurontin, Albuterol (rescue inhaler) and “Qvar.” Docket #83-4 at 2-3; docket #49 at 3-4.

6. Plaintiff was placed in a room with five other residents who smoked cigarettes. Docket #49 at 5.

7. Smoking was not permitted in the building at ICCS, but was permitted outside on an adjoining 750-square-foot patio where residents could sit at tables and smoke. Heath Affidavit, ¶¶ 8. 10; see also ICCS Rules of Conduct and House Policies, docket #83-5 at 23.

8. On August 6, 2013, Plaintiff submitted an ICCS Grievance Form to administration complaining about using her rescue inhaler “at an unprecedented rate” because of her exposure to cigarette smoke/odors when her roommates came in from smoking on the patio. Docket #83-7 at 2. Plaintiff conceded that “smoking is only allowed on the patio” and “I can avoid the smoking directly” at ICCS, but claimed that following a previous exposure to cigarette smoke, she was taken to the hospital by ambulance where she “had to be intubated and resuscitated.” Id. Plaintiff requested a “sleeping bedroom specifically designated for residents who aren’t smokers to help prevent health problems for those of us who are allergic to cigarette smoke.” Id.

9. ICCS Program Director, K. Heath, responded to Plaintiff’s grievance on August 7, 2013 asking Plaintiff to “provide medical documentation of your condition and what accommodations are required to your case manager.” Id. ICCS policy requires that “[r]oom and bed change requests will not be accepted. Exceptions may be made for documented medical conditions.” ICCS Rules of Conduct and House Policies, docket #83-5 at 21.

10. That same day, Plaintiff reported to her case manager, Defendant Echlenberg, that she was “deathly allergic to cigarettes” and that, “even though [her roommates] were not smoking in her room, she [was] still having problems [such as] itchy eyes, stuffed nose and using rescue inhaler a lot.” Docket #83-6 at 3.

11. In the late evening of August 7, 2013, an ICCS staff member reported being called to a bathroom in which the Plaintiff lay on the floor saying that she felt sick to her stomach and “just went to the floor.” The staff member reported getting Plaintiff some juice and after Plaintiff drank it, “[s]he was able to stand up and walk to her bed and stated that the juice made her feel much better.” Docket #83-6 at 3.

12. On August 14, 2013, Defendant Echlenberg reported that Plaintiff was “approved to use the security phone today or tomorrow to call Dr.” Docket #83-6 at 5.

13. On August 21, 2013, Echlenberg noted that Plaintiff reported to her “she needs to [get] letter from MCPN so that she can get inhailer [sic] as well as allergic letter.” Docket #83-6 at 7. Plaintiff also reported that “she was up until 12:30am weezing [sic] because of smoke.” Id.

14. That same day, Plaintiff submitted another ICCS Grievance Form, in which she again complained about being exposed to cigarette smoke in her room by “5 heavy smokers” whose “hair, clothes, etc. smell continuously of cigarette smoke” and cause Plaintiff to “have trouble breathing and stay up many hours wheezing and using [her] rescue inhaler in hopes of avoiding a trip to the emergency room.” Docket #83-8. She also explained that she could not get documentation of her health conditions from her last doctor, who required more than $40 for the cost, and asked why ICCS could not get Plaintiff’s records from the CDOC. Id. Plaintiff requested that she be housed “in a 100% non-smoker room.” Id.

15. On August 24, 2013 at 16:45, ICCS staff noted Plaintiff “is requesting to go to St. Anthony’s by ride for severe difficulty breathing. 3 hr pass, ext if verified.” Docket #83-6 at 8. Later, at 21:28, staff noted that Plaintiff “has returned from the hospital” and “brought dr’s note stating that she ‘should not be in a room where there is smoking, please place her in a nonsmoking location.’ All rooms are N/S[;] per on call, ...

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