United States District Court, D. Colorado
AUDREY L. TENNYSON, Plaintiff,
RICK RAEMISCH, CDOC Director; and DOUG ROBERTS, CDOC-PPMU Medical Monitor, Defendants.
ORDER AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND PLAINTIFF'S MOTION FOR PARTIAL SUMMARY
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE.
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 Response
(#116); and Mr. Tennyson's Motion for
Partial Summary Judgment (#105), and the
CDOC Officials' Response (#122).
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.
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.
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.
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).
Tennyson asserts 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.
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.
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.
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,  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.
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.
Standard of Review
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?
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.
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).
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).
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).