United States District Court, D. Colorado
DWIGHT D. YORK, known as Malachi Z. York, Plaintiff,
FEDERAL BUREAU OF PRISONS, Defendant.
Kathleen M. Tafoya, Magistrate Judge
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]).
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.)
RESPONSE TO DEFENDANT'S STATEMENT OF UNDISPUTED MATERIAL
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.”
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:
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
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.
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).
“[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).
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).
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
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.
56(a), (c), (e)(3); Reed, 312 F.3d at 1195-96.
RESPONSE TO PLAINTIFF'S ADDITIONAL DISPUTED OR UNDISPUTED
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.)
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
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.
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.
Reasonable Degree of Medical Certainty
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.)
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
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.
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
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.)
Medical care for inmates, including Plaintiff, is governed by
Bureau Program Statement 6031.04, Patient Care.
(Id., ¶ 8.)
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
BOP provides five major levels of care that guide medical
providers on how to triage inmates' needs. (Id.)
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
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.)
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
Finally, there are two lower categories of care:
“limited medical value” and
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.)
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, §
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.)
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 ...