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York v. Federal Bureau of Prisons

United States District Court, D. Colorado

March 22, 2018

DWIGHT D. YORK, known as Malachi Z. York, Plaintiff,


          Kathleen M. Tafoya, Magistrate Judge

         This matter comes before the court on “Defendant's Motion for Summary Judgment and Memorandum Brief in Support Thereof” (Doc. No. 49 [Mot.], filed August 8, 2017). Plaintiff filed his Response on October 3, 2017 (Doc. No. 55 [Resp.]), and Defendant filed its Reply on October 27, 2017 (Doc. No. 63 [Reply]).


         Plaintiff, a federal prisoner confined to the United States Penitentiary, Administrative Maximum (“ADX”) in Florence, Colorado, asserts one claim for injunctive relief for the defendant's alleged failure to provide him with specific medical care in violation of the cruel and unusual punishment clause of the Eighth Amendment. (See generally, Doc. No. 38, Second Am. Compl. [Am. Compl.], filed January 4, 2017.) Plaintiff alleges that he suffers from a life-threatening condition, Hereditary Angioedema (“HAE”), as well as hypertension (high blood pressure), vision and dental problems, and that Defendant's care does not meet minimum constitutional standards, placing his health and life in jeopardy. (Id. at 2, 5, 36-37.) Plaintiff seeks affirmative injunctive relief from the BOP in the form of additional medical care for his angioedema in accordance with “community standards of care.” (Id. at 37.) Plaintiff also seeks a declaratory judgment that Defendant has violated his Eighth Amendment right to be free from cruel and unusual punishment. (Id.)


         In his Response, Plaintiff responds to each of Defendant's statements of undisputed material facts by stating it is (1) admitted, (2) denied, or (3) “is not a material fact and should be stricken.”

         (See Resp. at 1-7.) Pursuant to Federal Rule of Civil Procedure 56(c), A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

         (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

         (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

         Fed. R. Civ. P. 56(c)(1). A party also “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2).

         Moreover, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e)(2)-(3).

         Finally, the court should accept as true all material facts asserted and properly supported in the summary judgment motion. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). “[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (quotations and citation omitted). The court is “not obligated to comb the record in order to make [Plaintiff's] arguments for him.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000).

         Accordingly, to the extent Plaintiff “denies” facts presented or requests that they be stricken as immaterial and yet fails to provide any evidence in support of the denial or request to strike which contradicts Defendants' evidence, the court considers the facts identified by Defendant as unopposed.

         Fed. R. Civ. P. 56(e)(2). Nevertheless, although certain facts are deemed admitted, the court still must decide whether the defendant is entitled to judgment as a matter of law based upon the material facts asserted and properly supported in the Motion and applicable legal principles. See Fed. R. Civ.

         P. 56(a), (c), (e)(3); Reed, 312 F.3d at 1195-96.


         In his Response, Plaintiff sets forth 58 paragraphs of additional disputed or undisputed material facts. (See Resp. at 8-13 [Pl.'s Facts].) Defendant disputes the statements of Harvey Cox and Dr. Busse, two of Plaintiff's expert witnesses, because they are not sworn or in the form of an affidavit. (Reply at 7, ¶ 52; 8, ¶ 56.) Defendant also disputes the statements of Mr. Cox because Plaintiff has not provided a necessary foundation for him to testify as an expert. (Id. At 8, ¶ 52.) Finally, Defendant disputes the statement of Dr. Busse because it is not presented to a reasonable degree of medical certainty. (Reply at 8, ¶ 57.)

         A. Sworn Affidavits

         The federal system abandoned the requirement for a sworn or certified copy of a paper or a formal affidavit in 2010. See Fed. R. Civ. P. 56, Advisory Committee Notes to 2010 Amendment, Subdivision (c) (“[This requirement] . . . is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record. A formal affidavit is no longer required.”). Moreover, the Tenth Circuit has stated that evidence supporting a motion for summary judgment

need not be submitted in a form that would be admissible at trial. Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Nonetheless, the content or substance of the evidence must be admissible. Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form.

Agro v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (emphasis in original, internal citations and quotations omitted). It is only necessary for the party submitting the evidence to show “that it will be possible to put the information, the substance or content of the evidence, into an admissible form.” Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (citation and internal quotation marks omitted).

         Because the written reports of Plaintiff's experts set out opinions that are anticipated to be offered in testimony at trial, there is no bar to considering those opinions here. The court will, however, disregard any statements recorded in the expert reports that would not be otherwise admissible at trial. See Agro, 452 F.3d at 1199.

         B. Foundation

         This court's practice standards require “[a] party objecting to the admissibility of opinion testimony by an expert witness [to] file a written motion seeking its exclusion.” See Practice Standards (Civil Cases), § III.J. “The deadline for filing all such motions shall be the same date as set for the filing of dispositive motions.” (Id.) Mr. Cox's report is dated February 1, 2017, and was provided to Defendant on February 3, 2017. (See Doc. No. 44.) Thus, at this time, Defendant's objection to the inclusion of Mr. Cox as an expert witness or to the inclusion of his report is overruled.[1]

         C. Reasonable Degree of Medical Certainty

         Defendant argues that Dr. Busse's opinion is not presented to a reasonable degree of medical certainty and that she only hypothesizes that Plaintiff could suffer from an airway attack. (Reply at 8, ¶ 57.)

         Federal Rule of Evidence 702 “imposes on the district court a gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' ” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that function, the court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). Defendant has not seriously called into question the “reasoning and methodology underlying [Dr. Busse's] opinion, ” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003). Rather, Plaintiff questions the validity of the opinion in the guise of attacking its admissibility.

         “While expert opinions ‘must be based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation, . . . absolute certainty is not required.' ” Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003) (citation omitted). See also Warren v. Tastove, 240 F. App'x 771, 773 (10th Cir. 2007) (requiring that “an opining physician . . . offer an opinion with a reasonable degree of medical certainty” and noting that “a hunch, even an educated hunch, is not enough”). Nevertheless, the fact that a physician may not be able to testify to a reasonable degree of medical certainty goes to the weight a testimony, not to its admissibility. In re Swine Flu Immunization Prod. Liab. Litig., 533 F.Supp. 567, 578 (D. Colo. 1980) (citing United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977).

         To the extent Defendant seeks to undermine the correctness of Dr. Busse's opinion, it may do so through normal means at trial. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”). Defendant's objection to Dr. Busse's opinion at this stage, however, is overruled.


General Background and BOP Procedures

         1. The BOP maintains electronic medical records for each inmate, which are referred to as BEMR (Bureau Electronic Medical Records). (Mot., Ex. A, Decl. of Stacy Collins, Health Services Administrator [“HAS”], ¶ 4.)

         2. Medical care for inmates, including Plaintiff, is governed by Bureau Program Statement 6031.04, Patient Care. (Id., ¶ 8.)

         3. The BOP seeks to provide health care to inmates in accordance with proven standards of care without compromising public safety concerns inherent to the agency's overall mission. (Id., Attach. 4, Program Statement PS 6031.04, at 2.)

         4. The BOP provides five major levels of care that guide medical providers on how to triage inmates' needs. (Id.)

         5. First, there are conditions that are “medically necessary - acute or emergent.” (Id. at 5.) These can include such conditions as myocardial infarction, hemorrhage or stroke, and other conditions “that are of an immediate, acute or emergent nature, which without care would cause rapid deterioration of the inmate's health, significant irreversibly loss of function, or may be life-threatening.” (Id.)

         6. The next level of classification includes those conditions that are “medically necessary - non-emergent.” (Id. at 6) These are conditions that are not immediately life threatening but that could lead to significant deterioration or irreversible damage in the absence of treatment; this category can include such conditions as HIV, cancer, or chronic conditions like diabetes, heart disease, or serious mental illness. (Id.) Plaintiff is classified as a Care Level 2. (Ex. A, ¶ 32.)

         7. The next level is “medically acceptable - not always necessary.” (Id.) This level includes conditions that are considered elective procedures, when treatment may improve the inmate's quality of life. (Id.) Relevant examples in this category can include joint replacement or treatment of non-cancerous skin conditions. (Id.)

         8. Finally, there are two lower categories of care: “limited medical value” and “extraordinary.” (Id.)

         9. At the ADX, Plaintiff has multiple avenues to access medical care (daily if needed). (Id., ¶ 9; Attach. 4 at 21.) Health Services providers at the ADX include Mid-Level Providers, Registered Nurses, Emergency Medical Technicians, and physicians. (Id.; Attach. 4 at 14.) Medical units have an EKG machine, blood-pressure monitor, and Automated External Defibrillators. (Id.; Ex. A, ¶ 9.) Each facility, including the ADX, is equipped to provide primary health care, dental care, and emergency care and basic first aid to an inmate-patient. (Id., ¶ 17; Attach. 6, Complex Supplement FCC 6031.01(4)g, Urgent Medical and Dental Services, § 4.)

         10. Depending on a patient's needs and subjective complaints, a provider can assess and examine a patient in his cell or at other locations. (Id., ¶ 10; Attach. 5, Complex Supplement FCC 6031.01(3)g, Triage/Access to Care, § 2.) If the examination is in a cell, the outer door can be opened so that the provider may speak to the inmate patient face-to-face while also taking vital signs, such as blood pressure readings. (Id.; Attach. 5, § A.1.d.)

         11. Health Services staff make daily rounds of the housing units at the ADX to attend to inmates' medical needs. (Id., ¶ 11; Attach. 5, § 6.A.1.b.) Health Services staff walk down all ranges and verify the well-being of each inmate. (Id.) Inmates may address medical issues during these rounds. (Id.) Health Services staff will determine if the issue must be addressed at that time or if the issue may be deferred to a later time. (Id.) At the ADX, these rounds will start during morning-watch, based on the availability of open ranges. (Id.) At the ADX, all routine sick call appointments will be conducted in the unit unless clinical staff determines care must be continued in the Health Services Unit examination areas. (Id.; § A.1.d.)

         12. If the patient requires a clinical encounter that is more extensive in nature or more extended in duration, the patient will be scheduled for escort to an exam room in the respective housing unit. (Id., ¶ 12; § 6.A.1.c.) That examination room is contained within the housing unit, and it includes a gurney and other items one would typically find ...

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