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Tennyson v. Raemisch

United States District Court, D. Colorado

September 14, 2017

RICK RAEMISCH, CDOC Director; and DOUG ROBERTS, CDOC-PPMU Medical Monitor, Defendants.



         THIS MATTER comes before the Court on Defendants Rick Raemisch and Doug Roberts's (collectively, the “CDOC Officials”) Motion for Summary Judgment (#102), and Mr. Tennyson's[1] Response (#116); and Mr. Tennyson's Motion for Partial Summary Judgment (#105), and the CDOC Officials' Response (#122).

         I. Jurisdiction

         Mr. Tennyson's lawsuit currently asserts at least two claims for prospective injunctive relief pursuant to 42 U.S.C. § 1983 against the CDOC Officials. Mr. Tennyson claims that the CDOC Officials have and are improperly denying him (i) Zantac (a medication used to treat gastro-intestinal reflux disease (“GERD”)) and (ii) refusing to supply him with adequate personal hygiene supplies making him purchase those items from the prison canteen when he does not have sufficient funds to do so. Both acts, Mr. Tennyson claims, violate his right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the U.S. Constitution. The parties dispute whether Mr. Tennyson currently is asserting First and Fourteenth Amendment claims; the CDOC Officials say that all of his claims other than the Eighth Amendment ones were dismissed or otherwise resolved earlier in the litigation, but Mr. Tennyson insists that the First and Fourth Amendment claims remain active. In any event, Mr. Tennyson seeks a court order requiring the CDOC Officials to provide him with the Zantac and hygiene supplies, regardless of whether he can afford to pay for them. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331.

         II. Factual Background

         This case involves cross-motions for summary judgment. Where the question of whether there is a genuine dispute as to a material factual issue turns upon which party has the burden of proof, the standard of proof and whether adequate evidence has been submitted to support a prima facie case or to establish a genuine dispute as to material fact, cross motions must be evaluated separately. In re Ribozyme Pharms., Inc., Sec. Litig., 209 F.Supp.2d 1106, 1112 (D. Colo. 2002); see also Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). That complicates matters somewhat in this case, because for the purposes of each summary judgment motion, the facts must be viewed in the light most favorable to the non-movant.

         Therefore, in the interest of efficiency, the Court summarizes the material facts relevant to the CDOC Officials' motion, which are viewed in the light most favorable to Mr. Tennyson. If it becomes necessary to construe any facts differently (i.e., in the light most favorable to the CDOC Officials) when resolving Mr. Tennyson's Motion for Partial Summary Judgment, the court will identify those re-construed facts in its discussion of the issues being raised by that motion.

         Mr. Tennyson is an inmate within the Colorado Department of Corrections (“CDOC”). He currently is incarcerated at Crowley County Correctional Facility (“CCCF”) in Olney Springs, Colorado. Mr. Tennyson's first claim challenges the practice of CDOC and/or CCCF of requiring inmates to use their own personal funds to purchase over-the-counter “personal comfort” medications except where (a) a medication is deemed to be “medically necessary” by a health care professional, and (b) the inmate cannot afford that medication. This requirement is reflected in CDOC administrative regulation AR 700-15(IV)(D)(2).

         Mr. Tennyson asserts[2] that since 2015 he has been unable to afford Zantac to treat his GERD, which was diagnosed twenty years ago, and that the CCCF medical staff (specifically, Dr. Louis Cabiling, Mr. Tennyson's physician at CCCF) will not designate it as medically necessary. His inability to afford Zantac results from the fact that his inmate canteen account has a negative balance, and that negative balance is the result of costs associated with his court-ordered restitution payments and his frequent litigation costs for filing fees, paper, pens, postage, etc. After payment of such costs, Mr. Tennyson has only approximately $1.90 per month credited to his account, which is insufficient to allow him to purchase a month-long supply of Zantac at a cost of $12.50.[3]

         According to Mr. Tennyson, CCCF medical staff acted in bad faith when refusing to designate that Zantac was medically necessary. Although he has GERD, Mr. Tennyson states that he was not examined or “re-diagnosed” to determine whether his initial diagnosis and prescription should be changed. Rather, according to Mr. Tennyson, CCCF and/or CDOC simply decided that over-the-counter GERD treatments (like Zantac) would no longer be provided through CCCF's clinical services - at least to him - and inmates would be required to purchase those sorts of medications themselves. Mr. Tennyson acknowledges that the CCCF medical staff prescribed and he receives a special diet to address his GERD symptoms, and that the diet helps his symptoms. He remains firm, however, that the diet is not as effective as Zantac is.

         Mr. Tennyson also states that he suffers from concrete injuries as a result of not having Zantac. He says that, absent Zantac, he suffers from chronic and severe pain, is unable to sleep at night and often wakes in pain, he belches acid that burns his nostrils, and his GERD causes him to “near-vomit.” He also says that when Dr. Cabiling informed him that he would need to begin obtaining Zantac through the prison canteen, he told Dr. Cabling that he could not afford it and would experience severe pain, but Dr. Cabling did not change his stance. Finally, Mr. Tennyson refers to a potential consequence of untreated GERD - the development of “Barrett's Esophagus, ” which he says can be a precursor to esophageal cancer.

         Mr. Tennyson's second claim is that due to his negative trust account balance, he cannot afford various hygiene products (soap, razors, etc.). Although, as discussed herein, the facts of this claim have changed somewhat, as of the time of briefing on the summary judgment motions, Mr. Tennyson conceded that that he was allowed to purchase one hygiene kit per month on credit despite his negative balance, but he contended that such a single kit - consisting of one three ounce bar of soap, [4] one four ounce shampoo bottle, one small deodorant, one comb, one 0.85 ounce toothpaste tube, and one miniature toothbrush - was only sufficient to last him six days. Mr. Tennyson says that in order to conserve his soap and shampoo, he is only able to shower using them every third day or so.[5]

         Mr. Tennyson states that because of his inadequate access to hygiene supplies, specifically including soap, his preexisting eczema condition has been aggravated, resulting in a skin irritation and itching severe enough that he scratched it to the point of bleeding. He also says that the lack of sufficient hygiene products causes him to develop a bad body odor, which in turn puts him at risk of inmate-on-inmate violence from other inmates who are offended by how he smells.

         III. Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Thus, the primary question presented to the Court in considering a Motion for Summary Judgment or a Motion for Partial Summary Judgment is: is a trial required?

         A trial is required if there are material factual disputes to resolve. As a result, entry of summary judgment is authorized only “when 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); Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A fact is material if, under the substantive law, it is an essential element of the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the conflicting evidence would enable a rational trier of fact to resolve the dispute for either party. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013).

         The consideration of a summary judgment motion requires the Court to focus on the asserted claims and defenses, their legal elements, and which party has the burden of proof. Substantive law specifies the elements that must be proven for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). As to the evidence offered during summary judgment, the Court views it the light most favorable to the non-moving party, thereby favoring the right to trial. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         Motions for summary judgment generally arise in one of two contexts - when the movant has the burden of proof and when the non-movant has the burden of proof. Each context is handled differently. When the movant has the burden of proof, the movant must come forward with sufficient, competent evidence to establish each element of its claim or defense. See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the absence of contrary evidence, this showing would entitle the movant to judgment as a matter of law. However, if the responding party presents contrary evidence to establish a genuine dispute as to any material fact, a trial is required and the motion must be denied. See Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013).

         A different circumstance arises when the movant does not have the burden of proof. In this circumstance, the movant contends that the non-movant lacks sufficient evidence to establish a prima facie case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party must identify why the respondent cannot make a prima facie showing; that is, why the evidence in the record shows that the respondent cannot establish a particular element. See Collins, 809 F.3d at 1137. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, then a trial is required. Conversely, if the respondent's evidence is inadequate to establish a prima facie claim or defense, then no factual determination of that claim or defense is required and summary judgment may enter. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

         IV. ...

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