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Paulsen v. Gebhart

United States District Court, D. Colorado

September 18, 2018

MARK WALTER PAULSEN, Plaintiff,
v.
GARETT GEBHART, BVCF TC Manager/Acting BVCF HSA, CHRIS TEIPEL, BVCF TC Counselor, and DOUG ROBERTS, BVCF Health Services Administrator, Defendants.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommendation of United States Magistrate Judge (the “Recommendation”) [Docket No. 110] filed on June 4, 2018. Magistrate Judge Kathleen M. Tafoya recommends that defendants' Motion for Summary Judgment [Docket No. 95] be granted. Docket No. 110 at 13. Plaintiff filed a timely objection. Docket No. 111. In light of plaintiff's pro se status, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

         I. BACKGROUND

         Plaintiff Mark Walter Paulsen is an inmate in the Colorado Department of Corrections (“CDOC”). Movant's Statment of Material Facts (“MSMF”) 1; Docket No. 95 at 1, ¶ 1. In July, 2014, plaintiff was transferred to the CDOC's Buena Vista Correctional Facility (“Buena Vista”). MSMF 3.

         Plaintiff has the hepatitis C virus (“HCV”). MSMF 4. In order to receive HCV treatment under the CDOC's guidelines, an inmate must complete a drug and alcohol treatment program. MSMF 5. One such program is the Therapeutic Community program (the “program”), which uses group therapy. MSMF 6. The program at Buena Vista lasts for approximately twelve months. MSMF 7.[1] Plaintiff began the program on August 6, 2014. MSMF 9. Defendant Chris Teipel was plaintiff's counselor during the program and documented plaintiff's progress. MSMF 10-11. Mr. Teipel noted that plaintiff regularly missed group time and work assignments. MSMF 12.

         While plaintiff was in the program, defendant Garett Gebhart became the manager of the program and acted as the Health Services Administrator (“HSA”), administrating the medical, mental health, and drug and alcohol teams at Buena Vista. MSMF 14-17. In April 2015, Mr. Gebhart responded to a “kite” from plaintiff requesting Case 1:16-cv-00129-PAB-KMT Document 117 Filed 09/18/18 USDC Colorado Page 3 of 15 the HCV protocol by sending plaintiff a portion of it. MSMF 19. In June 2015, Mr. Gebhart responded to a kite from plaintiff asking why HCV treatment had not been started even though he had been in the program for six months. MSMF 20. Mr. Gebhart responded that plaintiff had to complete the program before he could receive HCV treatment. Id. Plaintiff completed the program on July 22, 2015, fifty weeks after beginning the program. MSMF 13.

         In mid-August 2015, defendant Doug Roberts became Buena Vista's HSA. MSMF 23. In this position, he administratively supervised Mr. Gebhart, but he did not supervise medical treatment decisions. MSMF 24, 25.

         On January 19, 2016, plaintiff filed his complaint in this case. Docket No. 1. On March 18, 2016, Judge Lewis T. Babcock dismissed certain defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because the claims against them were legally frivolous and assigned the remaining claims to this Court. Docket No. 7 at 4. On March 29, 2017, the Court granted in part motions to dismiss filed by the then-remaining defendants. Docket No. 52 at 9. Plaintiff's remaining claims are brought pursuant to 42 U.S.C. § 1983 under the First Amendment for retaliation and under the Eighth Amendment for deliberate indifference to his medical needs against Messrs. Gebhart, Teipel, and Roberts. Docket No. 1 at 8-11, 17; see also Docket Nos. 7, 52.[2] On November 9, 2017, defendants filed their motion for summary judgment seeking summary judgment as to each of these claims. Docket No. 95.

         II. STANDARDS OF REVIEW

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). To be sufficiently specific, an objection must “enable[] the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” See Id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”).

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         However, when “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)) (internal quotation marks omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). “In applying this standard, we view all facts and any reasonable inferences that might be drawn from them in the light most favorable to the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994).

         III. ANALYSIS

         Plaintiff objects to the Recommendation with respect to both his deliberate indifference claim and his retaliation claim. Docket No. 111 at 1, 4. Plaintiff, however, argues retaliation with respect to only Mr. Teipel. Id. at 12; see also Docket No. 103 at 2-4. The Court sets ...


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