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Bruce v. Osagie

United States District Court, D. Colorado

May 23, 2017



          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on the following motions:

1. Defendant's Motion for Summary Judgment [#176, filed January 6, 2017];[1]
2. Plaintiff's Motion for Leave to File Amended Complaint (“Motion to Amend”) [#181, filed on January 26, 2017];
3. Plaintiff's “Motion for Court to Deny Defendant's Motion for Summary Judgment (Doc. #176) or in the Alternative Grant the Plaintiff an Enlargement of Time and/or a Continuance (Fed. R. Civ. P. 6(b), or Fed.R.Civ.P. 56(f))” (“Motion to Deny Summary Judgment”) [#193, filed March 22, 2017]; and
4. Plaintiff's “Motion to the Court for an Order to Defendant to be Issued Compelling Defendant to Follow the Court's November 16, 2016 Order Granting Plaintiff's ‘Motion to File Third Request for Production of Documents; Electronically Stored Information and/or Inspection of Tangible Things' (Doc. No. #158)” (“Motion to Compel”) [#197, filed April 21, 2017].

         These Motions were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), the Order of Reference dated July 6, 2015 [#43], and the memoranda dated January 26, 2017 [#182], March 13, 2017 [#190], March 22, 2017 [#194], and April 21, 2017 [#199]. This court has reviewed the Motions and the associated briefing, the entire case file, and the applicable law, and respectfully recommends that the Motion for Summary Judgment be GRANTED, that the Motion to Amend be DENIED, and that the Motion to Deny Summary Judgment be DENIED. Additionally, IT IS ORDERED that the Motion to Compel is DENIED.


         This court has recounted the background of this case in multiple recommendations and orders, and recites it again here only to the extent necessary to provide the appropriate context for the pending Motions. Plaintiff Antoine Bruce (“Plaintiff” or “Mr. Bruce”) is in the custody of the Federal Bureau of Prisons, and is currently incarcerated at the Administrative Maximum Facility (“ADX”) at the Federal Correctional Complex in Florence, Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, which the court granted. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

         Arriving at the Operative Pleading

         Section 1915 and the Local Rules of this District require a court to evaluate a prisoner complaint and dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); D.C.COLO.LCivR 8.1(b). On March 17, 2015, the court observed that Mr. Bruce is subject to filing restrictions pursuant to 28 U.S.C. § 1915(g), as a result of the court having dismissed at least three of Mr. Bruce's previous civil actions as lacking merit. See [#33]; see also [#42 at 1].[2] The court thus vacated the September 8, 2014 Order granting Plaintiff leave to proceed pursuant to § 1915 and directed him to show cause why he should not be denied leave to proceed in forma pauperis. [Id.] Rather than file a Response to the Order to Show Cause, on April 9, 2015, Plaintiff filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction (“Motion for TRO/Preliminary Injunction”), [#35], and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, [#34], in which he claimed imminent danger of serious physical injury because Defendant Osagie refuses medical treatment for the extreme swelling in his feet and ankles. Also, in the § 1915 Motion, Plaintiff stated he was having panic attacks, heart palpitations, and chest pains with labored breathing, and that he thinks he has diabetes, but Defendant Osagie will not order the necessary tests. Then, on May 7, 2015, Plaintiff filed a Motion to Amend, [#36], and attached another Amended Complaint, [#36-1], in which he named different defendants and raised new claims. The court construed both the § 1915 Motion and the Motion for TRO/Preliminary Injunction as a Response to the March 17, 2015 Order to Show Cause and found that Plaintiff failed to state specific factual descriptions of how, in each of the three claims he raised in the February 12 Complaint, Defendants had placed him in imminent danger of serious physical injury. [#37]. However, as to Plaintiff's alleged inability to walk due to the extreme pain caused by the swelling in his feet and ankles, the court indicated it would withhold any decision regarding Plaintiff's ability to proceed under § 1915. [Id. at 8]. The court then directed Plaintiff to pay the $400.00 filing fee if he desired to proceed with the claims that failed to assert an imminent danger of serious physical injury, and advised that the only proper filing at that time was the payment of the filing fee. [Id. at 9].

         On June 22, 2015, rather than pay the fee, Plaintiff filed another motion for a temporary restraining order and/or preliminary injunction. [#41]. The court found that the motion, for the most part, was a statement of new claims involving different individuals. See [#42 at 3]. The court stated that it would not consider the new claims because it had advised Plaintiff in the May 20, 2015 Order denying him leave to proceed pursuant to § 1915 that only payment of the fee was proper at that time. [Id.] The court in the same order drew the case in part and dismissed in part, dismissing all defendants except for Defendant Osagie and dismissing all claims except for what the court construed as a claim regarding the excessive swelling in Plaintiff's ankles and feet as asserted in the Motion for TRO/Preliminary Injunction. [#42 (citing [#35])]. The case was then reassigned to the Honorable Raymond P. Moore and the undersigned Magistrate Judge. Id. The court has since described Plaintiff's single claim as one for deliberate indifference to his serious medical needs in violation of the Eighth Amendment's prohibition against cruel and unusual punishment arising from Defendant's alleged failure to treat extreme swelling in Plaintiff's feet and ankles, also referred to as pitted edema. See, e.g., [#172 at 1-2 (citing #35 at 3 ¶ 4)]. Defendant filed an Answer to the claim on March 15, 2016. [#80].

         Subsequent Attempts to Amend

         Following the close of pleadings and before this court could hold a Scheduling Conference, Plaintiff filed multiple requests for injunctive relief in which he raised numerous allegations not associated with the swelling in his feet and ankles and that did not implicate Defendant Osagie. See [#87, #103]. In particular, Plaintiff asserted allegations regarding his ongoing medical treatment (or lack thereof), that prison officials were tampering with his legal mail, and that prison staff were withholding manila envelopes for the purpose of hindering his access to the courts. See [#87]. In the first Recommendation addressing new allegations, this court found that the requested relief should be denied and informed Mr. Bruce that he was barred from asserting claims not related to the pending action. See [#90]. In a second Recommendation, this court again noted that Plaintiff had not articulated “any nexus between his underlying claim involving edema in his legs and ankles with the myriad of physical ailments, ” as set forth in the motions for injunctive relief, or that he was in imminent danger of bodily harm. See [#117]. In both instances, this court recommended denying any request to amend or supplement the claim based on allegations raised in [#87] and [#103]. Judge Moore subsequently adopted these recommendations. See [#184].

         Pretrial Schedule and Discovery

         On July 26, 2016, this court held a Status Conference at which it set certain pretrial dates and deadlines. See [#124]. In relevant part, the court wrote, “[g]iven the duration of this matter and the multiple amendments by Plaintiff to date, any proposed joinder of parties or amendments of pleading must satisfy both the good cause standard under Rule 16(b) and the standard for amendment under Rule 15(a).” [Id.]

         Between August 1, 2016 and November 14, 2016, Mr. Bruce served Defendant with three sets of requests for production and one set of interrogatories and requests for admissions. See [#128, #128-1, #133, #141, #152]. On October 24, 2016, Mr. Bruce filed a First Motion to Compel, arguing that Defendant had provided only partial responses, and in certain instances no response, to approximately eight discovery requests. See [#142]. The requests at issue implicated “photographs, video recordings, or movies taken of Plaintiff since June 24, 2011, ” documenting “use of force team” on Plaintiff, and asked for Plaintiff's “sick call requests sheets, ” Plaintiff's medical records, and materials pertaining to Plaintiff's institutional chronological disciplinary report (“CDR”) at ADX, all dating from June 24, 2011. [Id.] On November 7, 2016, Mr. Bruce filed a Second Motion to Compel, asserting that Defendant's attorneys were “interfering, frustrating and/or impeding [his] ability or efforts in viewing and studying” the CDR, which dates from 2011 through October 14, 2016 and is stored on a CD and consists of 236 pages See [#149 at 2]. Plaintiff asserted that the requested materials are relevant to his sole remaining claim because “he could possibly identify use-of-force incidents where Defendant [Osagie] was present, or where he participated and displayed deliberate indifference to the pain and/or swelling in Plaintiff's legs, ankles and/or feet, ” and “where the Defendant stood by allowing Plaintiff's ankles and feet to be injured by prison staff.” [#163 at 3]. The Parties appeared to agree that the CDR and a pending-incident report were relevant for this purpose and this purpose alone. See [#161 at 2-3; #163 at 5]. The Parties also appeared to agree that Defendant Osagie had made the CDR available for Mr. Bruce's inspection on multiple occasions, but under conditions that Mr. Bruce deemed unsatisfactory.[3] Ultimately, this court denied the Motions to Compel in an Order dated January 5, 2017. See [#172].

         On January 6, 2017, Defendant filed the Motion for Summary Judgment. [#176]. On January 26, 2017, Plaintiff filed the Motion to Amend. [#181]. Mr. Bruce did not file a response to the Motion for Summary Judgment by January 27, 2017, the deadline proscribed by the Local Rules, and this court sua sponte extended the deadline up to and including February 27, 2017. See [#183]. Mr. Bruce did not file a response by that date. Defendant filed a Response to the Motion to Amend on March 13, 2017 [#192], and Plaintiff filed a Reply on March 27, 2017 [#195]. A few days earlier, on March 22, 2017, Mr. Bruce filed the Motion to Deny Summary Judgment. [#193]. Then, on April 21, 2017, Mr. Bruce filed the Motion to Compel, [#197], and a Supplement to the Motion to Deny Summary Judgment. [#198].


         The proposed amended complaint contains allegations relevant to the operative claim and asserts new claims that are essentially derivative theories of the operative claim. See [#181-1]. In other words, the proposed amended complaint remains focused on Defendant Osagie's alleged failure to provide adequate medical treatment to address the swelling in Plaintiff's ankles and feet, resulting in a violation of the Eighth Amendment's proscription against deliberate indifference. I address the Motion for Summary Judgment first because Defendant's argument, and the record he provides in support thereof, is both broad and specific enough to address the new allegations and theories of liability asserted in the proposed amended complaint. For the reasons stated below, I find that Plaintiff has not carried his burden of demonstrating a genuine issue of material fact exists regarding Defendant Osagie's conduct, and that the Motion to Amend should be denied on the basis of undue delay and futility.

         I. The Motion for Summary Judgment

         A. Legal Standard

         Defendant Osagie moves for summary judgment on Mr. Bruce's sole remaining claim related to swelling and pain associated with his ankles and feet. Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant 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 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). 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 conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). 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 party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). However, the nonmovant, Mr. Bruce here, must establish at a minimum an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citation omitted). When the moving party does not bear the ultimate burden of persuasion at trial, and Defendant Osagie does not, he may satisfy his burden at the summary judgment stage by identifying “a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). See also Anderson, 477 U.S. at 256 (The nonmovant “may not rest upon mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.”). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of his case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant, including…summary judgment proceedings.” Id. at n.3 (citations omitted). However, the court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008). “Although [o]ur summary judgment standard requires us to view the facts in the light most favorable to the non-moving party[, ] it does not require us to make unreasonable inferences in favor of the non-moving party.” Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008) (quoting Starr v. Downs, 117 F. App'x 64, 69 (10th Cir. 2004)). While Mr. Bruce failed to file a response to the Motion for Summary Judgment, this court construes the Motion to Deny Summary Judgment as a Response, to the extent it can. To the extent the Motion to Deny Summary Judgment is not applicable (or responsive), the court deems the properly supported facts offered by Defendant Osagie as true. See Fed. R. Civ. P. 56(e)(2); Lammle v. Ball Aerospace & Techs. Corp., Case No. 11-cv-3248-MSK-MJW, 2013 WL 4718928, at *1 (D. Colo. Sept. 1, 2013). However, in doing so, the court has reviewed the entirety of the exhibits submitted by Defendant so as to ascertain their context. Despite Mr. Bruce's failure to file a proper response, the court may not enter summary judgment unless Defendant Osagie carries his burden under Rule 56 of the Federal Rules of Civil Procedure. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002).

         B. Undisputed Material Facts

         Plaintiff's Medical Records as they Pertain to His Ankles and Feet

         The following facts are taken from Defendant's Statement of Undisputed Facts, [#176-1], which Mr. Bruce has not contested. Mr. Bruce's medical records, referred to by Defendant as Plaintiff's Bureau Electronic Medical Records (“BEMR”), reflect that the first instance since 2012 of him complaining about “problems in his lower extremities, ” is a complaint that his leg was broken during a use of force incident on October 23, 2013. [#176-1 at ¶ 1; #176-2 at ¶ 22; #176-3 at 72]. In July 2014, following a use of force incident, Mr. Bruce complained that ankle restraints had cut into the bone. Defendant found no sign of any such injury during a physical examination. [#176-1 at ¶ 2; #176-2 at ¶ 24; #176-4 at 138-139]. In August 2014, Mr. Bruce reported to Defendant during a sick call examination that his ankle brace was no longer effective for relieving his ankle pain. [#176-1 at ¶ 3; #176-2 at ¶ 25; #176-4 at 99]. Defendant encouraged Mr. Bruce to use his ankle brace as directed. [Id.; #176-4 at 101]. In September 2014, Defendant examined Mr. Bruce “following a sick call request for complaints of left ankle pain of about eight (8) months duration.” [#176-1 at ¶ 4; #176-2 at ¶ 26; #176-4 at 51-52]. Mr. Bruce represented he did not know the cause of the pain, but stated the ankle brace no longer helped and he requested referral to a bone/foot specialist. [Id.] “At this time, a request for a radiology consultation was submitted to assess Bruce's left ankle complaints.” Defendant also encouraged Mr. Bruce to continue “use of the ankle brace for support and compression and to stretch/keep warm compress on the left ankle.” [Id.] In September 2014, the consultation request for radiology was approved. X-rays of Mr. Bruce's left ankle were taken in October 2014 to assess his reports of chronic pain. The findings were negative. [#176-1 at ¶ 5; #176-2 at ¶¶ 28, 29; #176-4 at 381, 385]. During an unrelated sick call evaluation in November 2014, Mr. Bruce asked to see a foot specialist “for diagnosis and specialized treatment.” Defendant submitted a consultation request for “prosthetics/orthotics” to determine the need for orthotics. [#176-1 at ¶ 7; #176-2 at ¶ 31; #176-4 at 5-6].

         In January 2015, Defendant saw Mr. Bruce after Plaintiff requested an evaluation for “complaints of sudden painless swelling of his right ankle, ” which he had noticed the previous day but which led to pain on the day of the exam. [#176-1 at ¶ 8; #176-2 at ¶ 33; #176-5 at 333, 329]. Mr. Bruce denied “trauma, fever, malaise, nausea, vomiting, diarrhea, and dysuria.” During the examination, Defendant noted “edema, pitting edema, swelling, decreased active range of motion, decreased range of passive motion, warm to the touch and tenderness of the right ankle.” [Id.] Defendant also noted “2 pitting edema elicited (R)” and “ pitting edema (L).” [Id.] At this time, Defendant prescribed Mr. Bruce Spironolactone and predniSONE for the edema, ordered laboratory testing, and advised him to “follow-up at sick call as needed.” [Id.] Defendant attests that, “[d]ue to the idiopathic nature of the edema, these tests were ordered to rule out lymphedema, protein-losing enteropathy, liver disease, and nephrotic syndrome.” [Id.] X-rays of Mr. Bruce's right foot taken the same day were negative for bony pathology; although, the findings were noted as ÔÇťabnormal, ...

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