United States District Court, D. Colorado
JAMES R. DAWSON, JR., Plaintiff,
JEFF ARCHAMBEAU, the CEO of Colorado Health Partners; RICK RAEMISCH, Executive Director of the Colorado Department of Corrections; SUSAN TIONA, Chief Medical Officer of the Colorado Department of Corrections; C. IRELAND, FCF Health Providers; D. HIBBS; T. SICOTTE; and R. FRICKEY. Defendants.
OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND
VARIOUS OTHER PENDING MOTIONS
S. Krieger Chief United States District Judge.
before the Court on four summary judgment motions. The Court
has considered the motions and briefing for: (1) Defendants
Robert Frickey, Susan Tiona, and Rick Raemisch's Motion
for Summary Judgment (#152), Plaintiff James
R. Dawson, Jr.'s Responses (#161 and
#162), and these Defendants' Reply
(#163); (2) Defendant Jeff Archambeau's
Motion for Summary Judgment (#144), Mr.
Dawson's Response (#165), and Mr.
Archambeau's Reply (#169); (3)
Defendants Cynthia Ireland and Trudy Sicotte's Motion for
Summary Judgment (#141), Mr. Dawson's
Response (#161), and Ms. Ireland and Ms.
Sicotte's Reply (#163); and (4)
Defendant Dee Ann Hibbs' Motion for Summary Judgment
(#179), Mr. Dawson's
(#180), and Ms. Hibbs' Reply
before the Court are Mr. Archambeau's Motion to Strike
Mr. Dawson's Surreply (#174), Mr.
Dawson's Motion to Take Judicial Notice
(#175), and Ms. Hibbs' Motion for Leave
to Disclose and Reply Upon Expert Evidence and Testimony
Dawson is an inmate incarcerated at the Fremont
Correctional Facility (“Fremont”), which is
administered by the Colorado Department of Corrections
(“CDOC”). He has been diagnosed with Hepatitis C,
and his claims in this lawsuit arise from his alleged failure
to receive treatment for that diagnosis. In particular, Mr.
Dawson brings claims pursuant to 42 U.S.C. § 1983, and
the Court exercises federal question jurisdiction pursuant to
28 U.S.C. § 1331.
following facts are undisputed except where noted. They are
construed in the light most favorable to Mr. Dawson, an
supplemented as necessary in the court's analysis.
Dawson has been incarcerated since 1992. He suffers from
Hepatitis C, which he acquired through a blood transfusion
many years ago. Mr. Dawson asserts that his Hepatitis C has
progressed over the term of his incarceration and that he is
now experiencing symptoms consistent with end-stage liver
disease. Mr. Dawson initially attributed these purported
symptoms to suspected colon cancer, and therefore, he did not
aggressively pursue treatment for his Hepatitis C until late
2013. As a result of this decision to delay the initiation of
treatment, he declined liver function tests in at least 2004
recent years, a number of new medications have come to market
to treat or cure Hepatitis C. Many have an impressive cure
rate with limited side effects. For example, the evidence in the
record indicates that some of them (e.g., Harvoni,
Epclusa, etc.) successfully cure the infection in
95-99% of individuals taking the medication. Unfortunately,
these medications are also very costly. Likely as a result,
CDOC has devised and implemented its Clinical Standards and
Procedures for Hepatitis C Evaluation, Management and
Treatment (the “Protocol”), which governs the
monitoring of and treatment available to CDOC inmates with
the Protocol, to be eligible for the new medication therapy,
an inmate with Hepatitis C must: (1) have contracted the
infection at least twenty years ago; (2) be under 65; (3)
have a life expectancy of twenty years or more; (4) be at
risk of developing end-stage liver disease or liver cancer;
(5) have an elevated liver enzyme count for at least six
months; (6) have sufficient time left in his sentence to
complete a course of treatment; and (7) have begun and
continued with an alcohol and drug education
program. These eligibility criteria are intended to
be facially-neutral and inmate-specific, and inmates are
intended to be evaluated for treatment options based on their
specific individual situation and health status. If an inmate
is eligible for treatment (and is confirmed to have Hepatitis
C through blood testing), the first step is to undergo a
liver screening test to determine whether there has been any
liver damage. This is done by assessing the ratio of an
inmate's AST (a liver enzyme that can indicate liver
damage if detected in higher levels) to his or her platelet
count, which is known as the inmate's “APRI”
score. If an inmate's APRI score is below 0.4, no
treatment will be provided other than yearly testing. If an
inmate's APRI score is between 0.40 and 0.70, the inmate
will receive ongoing drug and alcohol treatment referrals in
addition to yearly screening. If an inmate's APRI score is
greater than 0.70, the inmate will begin undergoing Hepatitis
C treatment (after completion of the drug/alcohol treatment
program). That treatment includes additional screening for
liver damage and screening for liver cancer, ultrasound
screening for cirrhosis and accompanying esophageal varices,
and where medically indicated, administration of the
appropriate Hepatitis C medication (potentially including
Harvoni, Epclusa or Ribavarin).
Dawson claims that he meets all of the criteria imposed by
the Protocol. He first requested treatment under the Protocol
from Dr. Ireland in November 2013, when he saw her after
complaining about blood in his stool. Dr. Ireland scheduled
him for a late January 2014 appointment to assess his
condition, and she told him that he should obtain a copy of
the paperwork verifying that he previously had completed the
alcohol and drug education program.Mr. Dawson claims that at
this same appointment, he “informed” Dr. Ireland
that he was experiencing “disabling pain, swelling in
his stomach, bitter taste in his mouth, and light colored
stool (symptoms of end-stage liver disease).” There is
no indication that Dr. Ireland ordered any additional
treatment for that purported complaint other than to schedule
his Hepatitis C appointment.
Dawson had another appointment in early January 2014 with Ms.
Sicotte, a nurse practitioner with the CDOC. The purpose of
this visit was a routine post-procedure follow-up after Mr.
Dawson received some unspecified treatment at Pueblo
Endoscopy. Mr. Dawson says that he “informed [Ms.
Sicotte] of his [Hepatitis C] disease symptoms, ” but
she “ignore[d] [his] painful symptoms of end-stage
liver disease.” It is not clear what specifically he
told Ms. Sicotte about these “painful symptoms.”
Mr. Dawson further contends that Ms. Sicotte told him that
was already scheduled for an appointment in late January 2014
(approximately three weeks later), and that she prescribed no
additional Hepatitis C-related treatment for him at this time
(she did prescribe magnesium citrate to take prior to his
next scheduled colonoscopy).
January 29, 2014, Mr. Dawson met with Mr. Frickey, a nurse
practitioner, apparently for an assessment of his eligibility
for the Protocol. There is a dispute between the parties as
to the events of this appointment, which centers around the
question of whether Mr. Dawson did or did not refuse
Hepatitis C treatment at this time. According to Mr. Dawson,
he specifically asked to begin that treatment and to receive
care for his “painful symptoms” of end-stage
liver disease, which he says that he relayed to Mr. Frickey.
As was the case with respect to Ms. Sicotte, it is somewhat
unclear as to what these reported symptoms actually were, and
what exactly Mr. Dawson told Mr. Frickey about
them. Mr. Dawson further says that Mr. Frickey
told him that Hepatitis C treatment would be provided to him,
either by Mr. Frickey or by another provider. There is no
evidence before the Court showing that Hepatitis C treatment
was commenced for Mr. Dawson in the immediate time period
subsequent to his appointment with Mr. Frickey, though as
noted below, there is evidence that Mr. Dawson received the
relevant liver screening test no later than June 2015. At
that time, his APRI score was 0.329, well below the 0.70
threshold for administration of medication and even below the
0.40 threshold at which he would be referred for annual
testing. Mr. Dawson's test results also showed an AST
(liver enzyme) result of 23, which is well within normal
Dawson also was treated by Ms. Hibbs, a nurse, on August 25,
2015. The parties agree that Ms. Hibbs and Mr. Dawson
discussed his Hepatitis C treatment options. There is no
dispute that they discussed the purported requirement that
Mr. Dawson complete (or have completed) a drug and alcohol
treatment program, and Ms. Hibbs gave Mr. Dawson a
“contract” concerning the treatment of his
Hepatitis C condition to sign. Ms. Hibbs also ordered several
blood tests to evaluate his then-current Hepatitis C status
(viral load and genotype). Blood was drawn on October 1,
2015, and the lab results were reported back on October 5,
2015; Ms. Hibbs entered these results in Ms. Dawson's
chart. This was the full extent of her interaction with Mr.
Dawson. As was the case with the other providers discussed
above, Mr. Dawson broadly suggests that he told Ms. Hibbs
that he was suffering from “painful symptoms” of
Hepatitis C, but it is unclear what precisely he told her.
Mr. Dawson does say that he told Ms. Hibbs that he had been
experiencing abdominal pain for more than a year, but he does
not specify whether he explained the exact nature of that
pain or its severity. The specific treatment note
corresponding with the August 25, 2015 encounter did not
reflect any complaints of pain or other severe symptoms.
Dawson commenced this action asserting three claims under 42
U.S.C. § 1983: (1) as against Mr. Raemisch, Ms. Tiona
and Mr. Archambeau, he contends that they created and
implemented policies that allow inmates other than Mr. Dawson
to receive a particular Hepatitis C treatment, depriving him
of his right to equal protection under the Fourteenth
Amendment to the U.S. Constitution; (2) as against Dr.
Ireland, Ms. Sicotte, Ms. Hibbs and Mr. Frickey, he alleges
that they violated his Eighth Amendment rights by being
deliberately indifferent to his serious medical needs; and
(3) as against Dr. Ireland, Ms. Sicotte, Ms. Hibbs and Mr.
Frickey, he alleges that they violated the Fourteenth
Amendment's Procedural Due Process clause by failing to
follow the Protocol and provide him with Hepatitis C
treatment. Mr. Dawson also may be asserting a Fourteenth
Amendment substantive due process claim against one or more
of the Defendants, which the Court will address below.
Standard of Review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Thus, the primary question presented to the Court in
considering a Motion for Summary Judgment or a Motion for
Partial Summary Judgment is: is a trial required?
is required if there are material factual disputes to
resolve. As a result, entry of summary judgment is authorized
only “when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Savant Homes,
Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A
fact is material if, under the substantive law, it is an
essential element of the claim. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the conflicting evidence would enable a rational
trier of fact to resolve the dispute for either party.
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
consideration of a summary judgment motion requires the Court
to focus on the asserted claims and defenses, their legal
elements, and which party has the burden of proof.
Substantive law specifies the elements that must be proven
for a given claim or defense, sets the standard of proof, and
identifies the party with the burden of proof. See
Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). As to the evidence offered during summary judgment,
the Court views it the light most favorable to the non-moving
party, thereby favoring the right to trial. See Tabor v.
Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).
for summary judgment generally arise in one of two contexts -
when the movant has the burden of proof and when the
non-movant has the burden of proof. Each context is handled
differently. When the movant has the burden of proof, the
movant must come forward with sufficient, competent evidence
to establish each element of its claim or defense.
See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the
absence of contrary evidence, this showing would entitle the
movant to judgment as a matter of law. However, if the
responding party presents contrary evidence to establish a
genuine dispute as to any material fact, a trial is required
and the motion must be denied. See Leone v. Owsley,
810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City
of Grand Junction Police Dep't, 717 F.3d 760, 767
(10th Cir. 2013).
different circumstance arises when the movant does not have
the burden of proof. In this circumstance, the movant
contends that the non-movant lacks sufficient evidence to
establish a prima facie case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The moving party must
identify why the respondent cannot make a prima
facie showing; that is, why the evidence in the record
shows that the respondent cannot establish a particular
element. See Collins, 809 F.3d at 1137. If the
respondent comes forward with sufficient competent evidence
to establish a prima facie claim or
defense, then a trial is required. Conversely, if the
respondent's evidence is inadequate to establish a
prima facie claim or defense, then no factual
determination of that claim or defense is required and
summary judgment may enter. See Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
Mr. Dawson's Eighth Amendment Deliberate Indifference
Claim against Dr. Ireland, Ms. Sicotte, Ms. Hibbs and Mr.
Dawson asserts that Dr. Ireland, Ms. Sicotte, Ms. Hibbs and
Mr. Frickey each acted with deliberate indifference to his
need for adequate treatment and care for his Hepatitis C
condition in violation of his Eighth Amendment rights. These
Defendants contend that Mr. Dawson has not come forward with
evidence sufficient to establish either the objective or
subjective elements of his Eighth Amendment deliberative
Eighth Amendment states: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII. That
prohibition also prohibits prison officials from acting with
deliberate indifference towards an inmate's serious
medical needs. Estelle v. Gamble, 429 U.S. 97,
102-05 (1976). To establish a prima facie claim for
deliberate indifference under the Eighth Amendment, Mr.
Dawson must come forward with evidence that shows: (1) he was
suffering from a serious medical need that posed a risk of
serious harm to him if untreated; and (2) that each defendant
was subjectively aware of that need and the risk of harm it
posed to the inmate, yet purposefully chose to ignore it.
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000). A sufficiently serious medical need is one that has
been diagnosed by a physician as requiring treatment or is so
obvious that even a lay person would easily recognize the
need for medical attention. Hunt v. Uphoff, 199 F.3d
1220, 1224 (10th Cir. 1999); Swan v. Physician Health
Partners, Inc., 212 F.Supp.3d 1000, 1006 (D. Colo.