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Harper v. Philips

United States District Court, D. Colorado

January 4, 2016

SHAWN HARPER, Plaintiff,
SHARON PHILLIPS, in her individual and official capacities as a nurse practitioner, Defendant.


Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment (“Motion”) [filed September 4, 2015; docket #21]. The Court finds that oral argument will not assist in the adjudication of the Motion. For the reasons that follow, the Court grants the Motion.[1]


I. Procedural History

Plaintiff initiated this lawsuit as a pro se litigant currently incarcerated at the Colorado State Penitentiary (“CSP”). Plaintiff filed his Complaint on February 9, 2015, in forma pauperis, against Defendant Sharon Phillips, in her individual and official capacities as a nurse practitioner, alleging a deprivation of his Constitutional rights pursuant to 42 U.S.C. § 1983. See docket #1. Magistrate Judge Gordon P. Gallagher reviewed the Complaint, found it sufficient, and had the case drawn to a presiding judge on February 10, 2015 [see docket #5], at which time this Court was assigned the case [docket #6].

On September 4, 2015, Defendant filed the current Motion. Docket #21. On October 8, 2015, having not received a response from Plaintiff, the Court issued a Minute Order informing Plaintiff as follows:

Pursuant to D.C. Colo. LCivR 56.1(a), Plaintiff is reminded that he may file a written response to the Motion. Because the Court has not previously instructed this pro se Plaintiff of his opportunity to respond, the Court will accept a late-filed written Response to the Motion on or before November 2, 2015. Without a showing of exceptional cause, the Court will grant no extensions beyond this date.

Docket #22.

On October 12, 2015, Defendant filed a motion to vacate the upcoming final pretrial conference, which was to be held November 2, 2015. Docket #23. The Court on October 13, 2015, granted that motion, indicating the final pretrial conference would “be rescheduled, if necessary, upon the Court’s order ruling on the pending motion for summary judgment.” Docket #25. Two weeks later, on October 28, 2015, Plaintiff filed a “motion for continuance” and request for appointment of free counsel. Docket #27. The Court denied without prejudice the request for appointment of free counsel, as Plaintiff did not provide the Court “with information regarding the factors for the Court to consider pursuant to D.C. Colo. LAttyR 15(f)(1)(B).” Docket #29. However, the Court granted Plaintiff’s “motion for continuance” - which in effect was a request for Plaintiff to have more time to file a response to Defendant’s Motion - allowing him the ability to file it “on or before November 23, 2015.” Docket #29. Plaintiff also on October 28, 2015, filed what he labeled a “letter.” Docket #28. It appeared to be a proposed final pretrial order, which the Court explained in its subsequent Minute Order was an unnecessary filing because the Court had vacated the Final Pretrial Conference. Docket #29. Plaintiff also attached to his “letter” a variety of documents [see docket #28 at 6-18], which the Minute Order noted were improperly filed, because “any request for relief from this Court must be made in the form a motion” [docket #29].

Despite having been granted permission and two extensions to file a response, Plaintiff failed to do so. No further communications have been made by Plaintiff to the Court as of the time of this Order. Failure to file a response within the time specified results in a waiver of the right to respond or to controvert the facts asserted in the summary judgment motion. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Under these circumstances, a court accepts as true “all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment.” Id. Therefore, the Court here has accepted as true all properly supported facts provided by Defendant; however, given Plaintiff’s pro se status, it has done so only after a liberal review of facts provided by Plaintiff in his Complaint [see docket #1], as well as in his “letter” and exhibits to that document [see docket #28].[2]

Plaintiff’s suit asserts two claims against Defendant, both pursuant to 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. See docket #1 at 7-11. “The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishments on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). The Eighth Amendment is the main source of prisoners’ substantive rights and, regarding convicted prisoners, the legal standards under the Eighth and Fourteenth Amendments are generally congruous. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (noting that where constitutional protection is afforded under specific constitutional provisions, here the Eighth Amendment, alleged violations of the protection should be analyzed under those provisions and not under the more generalized provisions of the Fourteenth Amendment). Thus, the Court reviews Plaintiff’s claim under the Eighth Amendment as applicable to the states through the Fourteenth Amendment. Riddle, 83 F.3d at 1202.

In his first claim, Plaintiff alleges that on January 12, 2015, Defendant denied Plaintiff medical care for his chronic back pain, including his requests for pain medication, a back brace, and additional mattresses. Docket #1 at 7-10. In his second claim, Plaintiff alleges that Defendant discontinued his prescription for Bentyl, which had been prescribed to Plaintiff for treatment of his rectal prolapse. Id. at 11-13. Plaintiff also notes within claim two that Defendant discontinued his ability to receive the medication Excedrin. Id. at 11. Plaintiff seeks punitive damages in the amount of $1, 500, 000.00 against Defendant in her individual capacity. Id. at 15. He also seeks an order of injunction against Defendant in her official capacity, requiring Defendant to place Plaintiff “back on his medications, ” and to provide Plaintiff with pain medications, a back brace, and two mattresses for treatment of his back pain. Id.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party regarding Defendant’s Motion.

A. Plaintiff’s Failure to Exhaust Administrative Remedies

1. Anthony DeCesaro is the Step 3 Grievance Officer for the CDOC and is the custodian of records for Step 3 grievances. See Affidavit of Anthony DeCesaro (“DeCesaro Aff.”), docket #21-1 at ¶¶ 1- 2.

2. The CDOC provides offenders with administrative remedies pursuant to a three-step grievance process set forth by Administrative Regulation (“AR”) 850-04. Id. at ¶ 3.

3. AR 850-04 sets forth that offenders are required to first attempt to resolve any issue or complaint they have by filing a document known as a Step 1 grievance within 30 days of the discovery of the issue or complaint, to which an appropriate staff person for the CDOC responds in writing. Id. at ¶ 4.

4. If the offender is not satisfied with the result of the Step 1 grievance, he must then proceed to file another grievance form concerning the issue, known as a Step 2 grievance, within 5 days of receipt of the written response to the Step 1 grievance. Id. at ¶ 5.

5. If the offender is still unsatisfied with the response to his Step 2 grievance, he must then proceed to file a Step 3 grievance within 5 days of receipt of the written response to the Step 2 grievance. Id. at ¶ 6.

6. The Step 3 grievance is the final step in the CDOC grievance process. Id. at ¶ 7.

7. If an offender fails to timely file any grievance within the time periods provided by the grievance process, he has failed to comply with AR 850-04 or to exhaust his administrative remedies. Id. at ¶ 8.

8. With regard to Plaintiff’s complaints regarding Defendant’s alleged discontinuation of his prescription for Bentyl, Plaintiff did not exhaust his administrative remedies with respect to this claim because Plaintiff failed to submit his Step 3 grievance in accordance with the applicable time frames provided in AR 850-04. Id. at ¶ 16.

9. With regard to Plaintiff’s complaints regarding Defendant’s alleged failure to provide him medical care on January 12, 2015, for treatment of his back pain, Plaintiff did not exhaust his administrative remedies with respect to this claim because he failed to file a Step 3 grievance. Id. at ¶ 17.

B. Plaintiff’s Prescription for Bentyl

10. Plaintiff arrived at the CDOC in March of 2011 with a prescription for Bentyl (Dicyclomine), which Plaintiff had previously received while in county jail. See Affidavit of Dr. Susan Tiona (“Tiona Aff.”), docket #21-2 at ¶ 7; Affidavit of Sharon Phillips (“Def. Aff.”), docket #21-3 at ¶ 8.

11. Bentyl is an anti-cholinergic medication that relaxes the smooth muscles in the colon. It is most commonly used to treat irritable bowel syndrome (“IBS”), but only the diarrhea predominant form of IBS. See Tiona Aff. at ¶ 8; Def. Aff. at ¶ 9.

12. Per CDOC policy, Plaintiff’s prescription for Bentyl was continued until he could be evaluated by a health care provider for his intestinal/digestive complaints. See Tiona Aff. at ¶ 9; Def. Aff. at ¶ 10.

13. Plaintiff’s prescription for Bentyl was renewed for 90 days upon his arrival to the CSP, and then again for an additional 90 days, because he had not yet seen a provider for this specific medical complaint. See Tiona Aff. at ¶ 10; Def. Aff. at ¶ 11.

14. Plaintiff bore the responsibility of contacting the facility medical clinic to request an appointment to be seen for his digestive condition, but he failed to do so until many months after his arrival to the CDOC. See Tiona Aff. at ¶ 11; Def. Aff. at ¶ 12.

15. Plaintiff’s first mention of any specific intestinal complaint occurred on July 3, 2011, when he was incarcerated in the Colorado Territorial Correctional Facility (“CTCF”) infirmary recovering from a significant self-inflicted wound. At that time, Plaintiff informed the provider that he had a history of rectal prolapse. See Tiona Aff. at ¶ 12; Def. Aff. at ¶ 13.

16. On August 9, 2011, Plaintiff’s prescription for Bentyl was renewed for 180 days. See Tiona Aff., docket #21-2 at ¶ 13; Def. Aff., docket #21-3 at ¶ 15.

17. Plaintiff was seen by Dr. Hodge for intestinal complaints on January 19, 2012. See Tiona Aff. at ¶ 14; Def. Aff. at ¶ 18.

18. Dr. Hodge noted that “[Patient] also complains that some of his intestine (rectum) sometimes comes out with defection; thinks the Bentyl helps with this.” Dr. Hodge noted that Plaintiff’s prescription for Bentyl would be renewed for now, though a period of bowel observation could be an option for determining the severity of Plaintiff’s problems. See Tiona Aff. at ¶ 14; Def. Aff. at ¶ 18.

19. Plaintiff’s prescription for Bentyl automatically expired in July of 2012. See Tiona Aff. at ...

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