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Buhl v. Fox

United States District Court, D. Colorado

July 16, 2018

LEROY BUHL, Plaintiff,
JOHN FOX, Warden, and MS. COLLINS, Administrator of Health Services, Defendants.



         THIS MATTER comes before the Court on the Defendants' Motion to Dismiss and for Partial Summary Judgment (# 46), the Plaintiff's response (# 54), and the Defendants' reply (#60); the Plaintiff's Motion for a Preliminary Injunction (# 33); the Plaintiff's Motions for Declaratory Judgment (## 38, 42); the Plaintiff's Motions for Default Judgment (## 39, 44); the Plaintiff's Motions for an Evidentiary Hearing (## 43, 52); the Plaintiff's Motion to Strike the Defendants' Motion to Dismiss (# 53); the Plaintiff's Motion to Relax the Rules of Civil Procedure (# 65); the Plaintiff's Motion to Expand the Record to Include Attachments (# 66); and the Plaintiff's Motion to Reconsider (# 68). For the following reasons, the Motion to Dismiss is granted, in part, and the Plaintiff's motions are denied.


         Mr. Buhl initially brought six causes of action, but after screening conducted pursuant to 28 U.S.C. § 1915 (# 13), four claims were dismissed and only two 8th Amendment claims remain. As enumerated in the Complaint, Claim 2 alleges that Ms. Collins and Warden Fox were deliberately indifferent to Mr. Buhl's medical condition, in particular his need for particular footwear, in violation of the Eighth Amendment. Claim 5 alleges that Warden Fox was deliberately indifferent as to the effect of pepper spray on Mr. Buhl in violation of the Eighth Amendment. In addressing the various motions, the Court exercises jurisdiction under 28 U.S.C. § 1331.

         II. BACKGROUND [1]

         The Complaint alleges that Plaintiff Leroy Buhl is a prisoner incarcerated at the United States Administrative Maximum facility (ADX). Clinical directors of the ADX medical facility have prescribed and provided Mr. Buhl with a special type of lace-up shoe that the toes of his right foot from curling under the arch of the foot. But, since May 2016, Defendant Warden John Fox (Warden Fox) has authorized Defendant Collins (Ms. Collins) to deny the shoe to Mr. Buhl.

         The Complaint also alleges that Warden Fox routinely authorizes use of pepper spray on unruly and combative inmates who refuse to comply with staff orders. In the past, prisoners with cardiovascular medical conditions would be removed from the spray area to avoid medical effects on their conditions, but recently Warden Fox stopped doing so. Mr. Buhl is hypersensitive to the pepper spray. It causes his trachea to swell shut, leaving him choking and gasping for air until he goes unconscious. His throat remains swollen for weeks afterward. Mr. Buhl has asked Warden Fox to remove him from any spray areas prior to its use, but Warden Fox has denied this request. Instead, Warden Fox advised Mr. Buhl to notify health services if he is exposed to pepper spray. Since then, Mr. Buhl has suffered two choking bouts that resulted in fainting.


         With regard to Claim 2, the Defendants invoke qualified immunity as to any individual liability and seek dismissal claims for failure to allege facts sufficient to state a constitutional violation. Because one of the two prongs of the qualified immunity analysis requires consideration of whether Mr. Buhl has sufficiently pled a constitution violation, the Court will begin with consideration of the adequacy of the Complaint's allegations.

         With regard to Claim 5, Warden Fox seeks to dismiss Claim 5 under the the Prison Litigation Reform Act's (PLRA) due to Mr. Buhl's failure to exhaust administrative remedies prior to bringing suit. Because this contention is actually assertion of an affirmative defense, the Court applies the Rule 56 framework.

         a. Legal Standards Rule 12(b)(6)

         A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or threadbare recitals of the elements of a cause of action supported by mere conclusory statements. The Court then takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a “plausible” as compared to a “conceivable” claim. See: Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         Rule 56

         Rule 56 facilitates the entry of a summary judgment when no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is appropriate if there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Pe ...

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