United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
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.
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 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
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.
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.
MAGISTRATE JUDGE RECOMMENDATIONS
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”).
Plaintiff's First Claim
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).
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).
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.
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, ...