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Paulsen v. Booth

United States District Court, D. Colorado

March 29, 2017

MARK WALTER PAULSEN, Plaintiff,
v.
DAVE BOOTH, Executive Director, CDOC Drug and Alcohol Therapeutic Community, GARETT GEBHART, BVCF T.C. Manager/Acting BVCF HSA, CHRIS TEIPEL, BVCF T.C. Counselor, KERRY BARONI, BVCF/Regional HSA, DOUG ROBERTS, BVCF Health Services Administrator, and CHRISTINE STURGEON, Nurse Practitioner, Defendants.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Recommendation of United States Magistrate Judge Kathleen M. Tafoya filed on February 27, 2017 [Docket No. 46]. The magistrate judge recommends that the Court grant defendants'[1] motion to dismiss [Docket No. 30] in part. Specifically, the magistrate judge recommends dismissing plaintiff Mark Walter Paulsen's official capacity claims for monetary damages, his equal protection claim, and his Eighth Amendment claims against Kerry Baroni, Dave Booth, and Christine Sturgeon. Docket No. 46 at 19. Plaintiff requested an extension to file objections to the Recommendation, which the Court granted in part. Docket Nos. 48, 49. Plaintiff filed timely objections on March 20, 2017. Docket No. 50. In light of plaintiff's pro se status, the Court will construe plaintiff's objections liberally, but will not advocate for him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         I. BACKGROUND

         The Recommendation contains the relevant background facts, which will not be repeated here. Docket No. 46 at 1-3.

         II. STANDARD OF REVIEW

         For dispositive motions, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).

         III. ANALYSIS

         Plaintiff discusses all of the magistrate judge's recommendations, even her recommendations that certain of his claims not be dismissed, except for her recommendation on plaintiff's official capacity claims for monetary damages. Docket No. 50. The Court will assume that plaintiff does not intend to object to the magistrate judge's recommendations in his favor, but assumes that he objects to the other recommendations.

         A. Eighth Amendment Deliberate Indifference

         1. Kerry Baroni

         The magistrate judge recommends that plaintiff's claims against Ms. Baroni, the prison's health services administrator, be dismissed because her alleged denial of his grievances, “by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.” Docket No. 46 at 9 (quoting Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)). Plaintiff objects that “Ms. Baroni could have and should have responded to the Set #1 step 1 grievance to ensure Plaintiff received chronic care for his hepatitis symptoms, but she neglected or refused to do so.” Docket No. 50 at 2.

         As the magistrate judge correctly found, an allegation that a prison official should not have denied a grievance about an alleged violation is not sufficient to establish personal participation in the underlying § 1983 violation. Gallagher, 587 F.3d at 1069 (“Because [plaintiff's] only allegations involving these defendants relate to the denial of his grievances, he has not adequately alleged any factual basis to support an ‘affirmative link' between these defendants and any alleged constitutional violation.”). Plaintiff's objection points to no alleged personal involvement by Ms. Baroni beyond denying his grievance. Accordingly, the Court will dismiss plaintiff's claims against Ms. Baroni.

         2. Dave Booth

         The magistrate judge recommends that plaintiff's claim against Mr. Booth, the executive director of the treatment program, be dismissed because plaintiff fails to allege Mr. Booth was aware “when Plaintiff was diagnosed with Hepatitis C or that his condition was deteriorating due to lack of treatment” and therefore does not allege any facts showing Mr. Booth was aware of an excessive risk to plaintiff's health. Docket No. 46 at 10-11. Plaintiff's objection ...


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