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May v. Segovia

United States District Court, D. Colorado

November 16, 2017

BILLY F. MAY, Plaintiff,
v.
JUAN SEGOVIA, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Defendant Juan Segovia's (“Defendant” or “Mr. Segovia”) Motion for Summary Judgment (or “Motion”). [#77, [1] filed September 18, 2017]. The Motion is before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated June 3, 2015 [#25]. The court has determined that oral argument will not materially assist in the resolution of this matter. Accordingly, upon careful review of the Motion and related briefing, the entire case file, and the applicable case law, the Motion for Summary Judgment is GRANTED.

         BACKGROUND

         The court has discussed the background of this matter in several prior orders, see, e.g., [#41; #64], and discusses it here only as it pertains to the instant Motion for Summary Judgment. Plaintiff Billy May (“Plaintiff” or “Mr. May”) filed a pro se prisoner complaint in this case on February 27, 2015, while incarcerated at the Federal Prison Camp (“FPC”) in Florence, Colorado.[2] [#1]. At the court's direction to refile using the appropriate form, Mr. May filed an Amended Complaint on March 16, 2015, asserting claims pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [#4]. The Honorable Lewis T. Babcock issued an order to dismiss in part and to draw the case on March 19, 2015. [#7]. Judge Babcock dismissed Plaintiff's claims against the Federal Bureau of Prisons as barred by sovereign immunity, and drew Plaintiff's claims against Defendants George Santini and Frank Cordova to the undersigned Magistrate Judge. See [id. at 2].

         On January 19, 2016, the undersigned granted Plaintiff's request to further amend his complaint-Plaintiff's Second Amended Complaint (“SAC”) is the operative complaint in this matter. See [#41; #42]. The court construed Plaintiff's SAC as asserting three constitutional claims against Frank Cordova, a certified nurse practitioner, and Mr. Segovia, the former Camp Administrator of FPC; the SAC dismissed George Santini as a Defendant. [#42 at ¶¶ 2-3]. On March 21, 2016, Messrs. Cordova and Segovia moved to dismiss Plaintiff's SAC. [#59]. The court granted the Motion to Dismiss in part, and held that Mr. Cordova was immune from Bivens suits under the Public Health Service Act, 42 U.S.C. § 233, and that Plaintiff had failed to allege a plausible Eighth Amendment deliberate indifference claim or Fourteenth Amendment equal protection claim against Mr. Segovia. [#64]. The court, however, denied the Motion to Dismiss as to Plaintiff's Fifth Amendment procedural due process claim against Mr. Segovia. [Id.]. In his SAC, Plaintiff seeks immediate release from incarceration and punitive damages in the amount of $280, 000.00. [#42 at 4].

         Mr. Segovia now moves for summary judgment on Mr. May's remaining due process claim. [#77]. Mr. May has since filed his Response and Defendant his Reply. [#78; #84]. Because the Motion is ripe for resolution, the court considers the Parties' arguments below.

         LEGAL STANDARD

         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., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence, viewed in a light most favorable to the nonmovant, 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Carey v. U.S. Postal Serv., 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. “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).

         If the moving party demonstrates an absence of evidence supporting an essential element of the opposing party's claims, the burden shifts to the opposing party to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To satisfy this burden, the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. Id.; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). 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 [her] 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).

         MATERIAL FACTS

         The following facts, drawn from the record and viewed in a light most favorable to Mr. May, are undisputed for purposes of the instant Motion. The events giving rise to this action occurred while Mr. May was incarcerated at the FPC in Florence, Colorado. [#42 at ¶ 1; #77-1 at ¶ 2]. At several points during 2014 and 2015, FPC experienced chronic outbreaks of scabies, [#42 at ¶¶ 7-23; #77-2 at ¶ 3], a parasitic infection of the skin caused by scabies mite, [#27-3 at 10]. Scabies is a highly contagious and communicable disease that can be transmitted though the sharing of clothing, bedding, or towels, as well as through skin-to-skin contact. See [id. at 10- 11, 14-15; #77-2 at ¶ 2]. Though contracting scabies, it may up to six weeks before a patient exhibits symptoms of the infection, i.e., pruritis (itchy skin). [#23-7 at 10]. In the event of a scabies outbreak, FPC treats all symptomatic inmates and asymptomatic “close contacts, ” namely cellmates, with permethrin cream or by oral Ivermectin, and attempts to disinfect all linens and clothing within the facility. See [id. at 13-17; #77-2 at ¶ 2].

         FPC's efforts to control and eradicate the scabies outbreak in 2014 failed, so Defendant and FPC executives developed a plan to treat FPC inmates again in early 2015. [#77 at ¶¶ 3-6]. According to this plan, all FPC inmates were to receive Ivermectin on January 8, 2015, and any inmates who refused the medication were to be quarantined in the Special Housing Unit (“SHU”). See [id. at ¶ 6]. On January 8, 2015, FPC medical staff administered Ivermectin to all willing inmates; Defendant was the only member of the executive staff present during this procedure. See [#42 at ¶ 23; #77-2 at ¶ 7]. Mr. May was one of several inmates to refuse the Ivermectin; he explained that he previously suffered an allergic reaction to the first dose of Ivermectin and would not take the medication again. See [id. at ¶ 7; #77-4 at 49:2-12, 50:1-16]. Because of their refusals, Defendant transferred Plaintiff and the other inmates to the SHU. See [#27-3 at ¶ 6; #42 at ¶¶ 23-27; #77-2 at ¶ 7; #77-4 at 49:22-50:2]. Plaintiff and the other inmates were to remain in the SHU until medically cleared by FPC medical staff. See [#77-2 at ¶ 9; #77-3 at 2].

         While in the SHU, Plaintiff was placed on administrative detention status and received permethrin cream to treat any potential scabies infection. [#27-2 at 3; #77-3 at 7; #77-4 at 96:9- 24]. According to Plaintiff, his cell in the SHU was approximately 10 feet by 15 feet, and included a window looking into a courtyard, two beds, a table, two steel benches, a washbasin, a toilet, and a shower. See [#77-4 at 63:2-7, 63:16-19, 65:13-21]. He also had the ability to communicate with SHU guards, [id. at 68:1-8], and received at least three meals per day, [id. at 75:23-76:18]. However, Mr. May's placement in the SHU resulted in the loss of his personal items and privileges, aside from necessary hygienic items, see [id. at 66:7-24], and, for at least the first 24 hours, Mr. May was permitted to wear only his underwear and a tee-shirt, and was provided only a sheet to stay warm, see [id. at 82:4-21]. FPC later provided Mr. May a jumpsuit and shower shoes. See [#77-4 at 66:22-24, 67:3-11].

         Mr. May remained in the SHU until February 4, 2015, before being cleared by medical staff. See [#77-3 at 2; #77-4 at 62:23-63:1; #77-5 at ¶¶ 19, 21; #77-6 at 4]. Prior to his release, FPC personnel conducted weekly visits to the SHU and FPC medical staff conducted daily visits to the SHU. See [#77-3; #77-5 at ¶¶ 25-26; #77-6 at 6-10; #77-7 through #77-9; #77-10]. Plaintiff also had access to administrative remedy procedures though he did not receive the appropriate forms until after several days in the SHU. See [#77-1 at 17; #77-4 at 98:18-23; #78 at 1]. Nonetheless, Plaintiff filed 5 formal administrative grievances while housed in the SHU. See [#77-1 at 17-19]. Following his release from the SHU, Plaintiff filed an additional 24 formal administrative grievances prior to his release from custody in November 2015, see [id. at 19-31]; however, none of these grievances, nor the 5 filed while housed in the SHU, dealt with his placement in the SHU, conditions in the SHU, or the ...


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