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Sweeney v. Allred

United States District Court, D. Colorado

March 26, 2018




         On January 1, 2017, Plaintiff Brian Lamont Sweeney (“Plaintiff”) filed a Complaint (ECF No. 1) (“Complaint”) asserting claims for deprivation of his Eighth Amendment rights against Defendants Dr. (FNU) Allred, Dr. Nixon Roberts, Captain (FNU) Kline, and Warden (FNU) T.K. Cozza-Rhodes (collectively, “Defendants”). On June 9, 2017 Defendants filed their Motion for Summary Judgment for Failure to Exhaust Administrative Remedies (ECF No. 31) (“Motion”). Plaintiff filed his Response to Defendant's Motion (ECF No. 49) (“Response”) on September 8, 2017, to which Defendants filed a Reply (ECF No. 50) (“Reply”) on September 12, 2017. On December 6, 2017, United States Magistrate Judge Mark L. Carman issued his Recommendation and Order (ECF No. 54) (“Recommendation”) granting Defendants' Motion for Summary Judgment. Plaintiff filed his “Objections to Magistrate's Recommendation and Order” (ECF No. 59) (“Objection”) on January 8, 2018. For the reasons set forth below, Judge Carman's Recommendation is adopted in its entirety and Plaintiff's Objection is overruled.

         I. BACKGROUND

         Plaintiff, proceeding pro se, is a prisoner in the custody of the Bureau of Prisons (“BOP”) and was formerly housed at United States Penitentiary Florence (“USP Florence”). (ECF No. 1 at 10.) Plaintiff claims that on or about February 21, 2015, while at USP Florence, he slipped and fell in his cell, injuring his jaw. (Id. ¶¶ 8-9.) The fall “loosened seven teeth in [Plaintiff's] lower jaw.” (Id. ¶ 9.) According to Plaintiff, he was taken to the Lieutenant's office, where the Lieutenant “called [Plaintiff] a liar and ordered that [Plaintiff] be placed in the Special Housing Unit (‘SHU'), for administrative segregation, until [Plaintiff] changed his story.” (Id. ¶ 12, 14.) Plaintiff claims he “informed SHU staff of his injuries and his need for treatment, and a liquid diet, upon his admittance in SHU” (id. ¶ 16) and that “SHU staff refused to provide treatment or document [Plaintiff's] need for a liquid diet” (id. ¶ 18).

         According to Plaintiff, on February 23, 2015, Defendant Dr. Allred “noted possible jaw fracture but did not do anything but give X-ray.” (Id. ¶ 21.) Plaintiff claims that these X-rays revealed that “numerous teeth were dislodged from his lower jaw.” (Id. at ¶ 23.) Defendant Dr. Roberts also assessed Plaintiff's injuries. (Id. ¶ 24.) Plaintiff states that Defendant Roberts “told [Plaintiff] that he needed treatment, but told [Plaintiff] that unless he changed his story of how he received the injuries, he would not received [sic] any medical treatment, and might loose [sic] his teeth.” (Id. ¶ 26.) Additionally, Plaintiff states that the SHU lieutenant and Defendant Captain Kline “told him that if he did not tell them the truth of how he was injured, they would place [Plaintiff] in the cell with the inmate who they believed caused the injuries.” (Id. ¶ 30.) Defendant Kline “then told [Plaintiff] that unless he changed his story, he would not receive any medical treatment, or medicine for his injuries.” (Id. ¶ 32.)

         Plaintiff is diabetic and during this time he had to “swallow whole unchewed food risking choking to death.” (Id. ¶¶ 33-34.) According to Plaintiff, this caused “sever [sic] stomach pain, and fluxuation [sic] of his sugar levels.” (Id. ¶ 34.) “Twice during his stay in SHU, [Plaintiff] lost consciousness due to his being unable to eat enough food to sustain proper blood sugar levels, because he could not chew the solid foods they gave him.” (Id. ¶ 37.)

         Plaintiff alleges that this “denial of medical treatment continued until on or about March 6, 2015” (Id. ¶ 36), when Defendant Warden T.K. Cozza-Rhodes “ordered [Plaintiff] to be taken to the Dental Department for evaluation and treatment” (id.). During the dental examination, Plaintiff “was told that they would have to remove all his bottom teeth.” (Id. ¶ 38.) Plaintiff claims that “[t]he reason they had to remove his teeth was the delay in treatment.” (Id. ¶ 39.)

         Plaintiff brings this Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1 at 3.) In addition to monetary damages, Plaintiff seeks declaratory and injunctive relief. (Id. ¶ 45.) In their Motion, Defendants contend that they should be granted summary judgment because Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), because he either filed his remedies at the wrong level or did not timely appeal those administrative remedies. (ECF No. 31 at 7-9.)


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. An objection is proper if it is filed within fourteen days of the Magistrate Judge's recommendation and is specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).

         Further, the Court is mindful of Plaintiff's pro se status, and accordingly reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who still must comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).

         Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence 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, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000).

         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 jury could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         III. ...

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