United States District Court, D. Colorado
BILLY F. MAY, Plaintiff,
JUAN SEGOVIA, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant Juan Segovia's
(“Defendant” or “Mr. Segovia”) Motion
for Summary Judgment (or “Motion”). [#77,
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.
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. [#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].
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].
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.
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).
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).
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].
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].
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].
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 ...