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Jones v. Santini

United States District Court, D. Colorado

March 8, 2018

STEVEN BRADLEY JONES, SR., #06332-091, Plaintiff,
v.
DR. GEORGE SANTINI M.D./C.D., FNU WILLIAMSON P.A./MLP, HECTOR LOZANO, Assoc. Administrator, LARRY HUTSON, Administrator, and DR. THOMAS G. KRAUS M.D./C.D., Defendants.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter is before the Court on two recommendations [Docket Nos. 57 and 58] filed on January 2, 2017 by Magistrate Judge Michael E. Hegarty (collectively, the “Recommendations”). Also before the Court are Plaintiff's Objection to Recommendation of United States Magistrate Judge and Request for Appointment of Civil Pro Bono Representation Pursuant to Local Rule 15(a) [Docket No. 61] and Plaintiff's Objection to Recommendation of United States Magistrate Judge (Doc. 58), and Request, Demand for Jury Trial Pursuant to Fed.R.Civ.P. 38(b). Docket No. 62.[1]

         I. BACKGROUND

         Plaintiff Steven Bradley Jones, Sr., an inmate at FCI Englewood in Colorado, suffered an adverse reaction to 500 mg. of Ciprofloxacin, which was prescribed to him by defendant Thomas G. Kraus M.D. Docket No. 21 at 4-5. Plaintiff alleges that, as a result of the adverse reaction, he “continues to suffer from painful, itchy, burn-like lesions upon his underarms, hands, face and upper arms” and that he has developed “adverse reactions to common, everyday toiletry products such as soap, deoderant [sic], toothpaste etc.” Docket No. 21 at 4. Plaintiff claims that, since the adverse reaction, defendants other than Dr. Kraus have denied him proper treatment and have refused to refer him to a dermatologist. Id. at 5. Plaintiff also claims that, in retaliation for filing this lawsuit, defendant Hector Lozano, the associate administrator of health services at FCI Englewood, told defendant Williamson, a physician's assistant, to confiscate plaintiff's cane, which Mr. Williamson did. Id. at 2, 6.

         On May 19, 2017, Magistrate Judge Gordon P. Gallagher directed plaintiff to amend his initial complaint because his claims were not supported by specific factual allegations. Docket No. 7 at 5. After amendment, District Judge Lewis T. Babcock dismissed plaintiff's claims against Dr. Kraus as legally frivolous and ordered that the case be randomly reassigned. Docket No. 11 at 4; see also D.C.COLO.LCivR 8.1. Thereafter, plaintiff filed a second amended complaint containing three claims: (1) deliberate indifference to his serious medical needs[2] against all defendants, (2) retaliation in violation of the First Amendment against defendants Williamson and Lozano based on the confiscation of plaintiff's cane, and (3) failure to protect in violation of the Eighth Amendment against Dr. Kraus. Docket No. 21 at 5-7.

         After plaintiff served all defendants except Dr. Kraus, defendants George Santini M.D., Larry Hutson, the administrator of health services at FCI Englewood, Williamson and Lozano (collectively, “defendants”) filed a motion to dismiss plaintiff's first and second claims for relief. Docket No. 41. Defendants Williamson and Lozano also moved for summary judgment on plaintiff's second claim. Docket No. 42. After these motions were filed, plaintiff served Dr. Kraus. Docket No. 56.

         On January 2, 2017, Magistrate Judge Hegarty issued his Recommendations. Docket Nos. 57, 58. Plaintiff filed timely objections to the Recommendations. Docket Nos. 61, 62. Plaintiff also requests appointment of pro bono counsel pursuant to D.C.COLO.LCivR 15. Docket No. 61 at 5.

         II. MAGISTRATE JUDGE RECOMMENDATIONS

         The Court will “determine de novo any part of the magistrate judge's disposition that has been properly objected to” by plaintiff. Fed.R.Civ.P. 72(b)(3). “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court . . . .” United States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (emphasis added). To be sufficiently specific, an objection must “enable[] the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” See Id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“[I]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”).

         A. Plaintiff's First Claim

         In his first claim, plaintiff alleges violations of his Eighth Amendment rights. Docket No. 21 at 5, 7. “A prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” See Farmer v. Brennan, 511 U.S. 825, 828 (1994). To prevail on his claim that defendants violated the Eighth Amendment, plaintiff must show that (1) objectively, the harm he complains of is sufficiently “serious” to merit constitutional protection and (2) defendants were subjectively aware of a substantial risk to plaintiff's health or safety and acted in purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

         Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Upon a public official's assertion of a qualified immunity defense, plaintiff bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008). Under the first prong of the analysis, the plaintiff is required to “establish that the defendant's actions violated a constitutional or statutory right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of whether a violation occurred under the first prong of the qualified immunity analysis turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007). Under the second prong, the plaintiff must show that the right at issue was “clearly established” at the time of the defendant's alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).

         The magistrate judge recommends that plaintiff's first claim be dismissed on qualified immunity grounds. Docket No. 57 at 6. Specifically, the magistrate judge found that plaintiff had both failed to allege a constitutional violation and failed to show that the law was clearly established. Id. at 10-11. The magistrate judge assumed that plaintiff's alleged injury was sufficiently serious to meet the objective element of a serious medical need, but nonetheless found that plaintiff had not alleged a constitutional violation because he had not alleged sufficient facts to support the subjective element of deliberate indifference. Id. at 7. The magistrate judge found that the defendants' decisions about treatment “constitute[d] an exercise of medical judgment not subject to Eighth Amendment scrutiny.” Id. at 8 (citing Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008)). The magistrate judge found that plaintiff did not show that the law was clearly established because “binding Supreme Court or Tenth Circuit precedent would not put a reasonable officer on notice that consistently declining an inmate's request to see a dermatologist, and instead treating the inmate internally, would violate the inmate's constitutional rights.” Id. at 11.

         Plaintiff devotes the majority of his objection to arguing that his injury is objectively serious. Docket No. 61 at 1-3. But, as noted above, the magistrate judge assumed that plaintiff's injury was objectively serious. Docket No. 57 at 7-10. Thus, ...


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