United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.)
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.)
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.)
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)).
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).
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).
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).