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Dawson v. Archambeau

United States District Court, D. Colorado

March 30, 2018

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.


          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER

         comes 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 (#183).

         Also 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 (#178).

         I. Jurisdiction

         Mr. Dawson[1] 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.

         II. Factual Background

         The 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.

         Mr. Dawson has been incarcerated since 1992. He suffers from Hepatitis C, which he acquired through a blood transfusion many years ago. Mr. Dawson asserts[2] 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 and 2012.

         In 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.[3] 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 Hepatitis C.

         Under 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.[4] 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.[5] 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).

         Mr. 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.[6]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.

         Mr. 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).

         On 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.[7] 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 range.

         Mr. 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.

         Mr. 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.

         III. Standard of Review

         Rule 56 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?

         A trial 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. 2013).

         The 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).

         Motions 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).

         A 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).

         IV. Analysis

         A. Mr. Dawson's Eighth Amendment Deliberate Indifference Claim against Dr. Ireland, Ms. Sicotte, Ms. Hibbs and Mr. Frickey.

         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 indifference claim.

         The 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. 2016).

         1. Objective ...

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