United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
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).
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.
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. 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.
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.
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.
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. On November 9,
2017, defendants filed their motion for summary judgment
seeking summary judgment as to each of these claims. Docket
STANDARDS OF REVIEW
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
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).
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).
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