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Paulsen v. Roberts

United States District Court, D. Colorado

September 21, 2018

MARK WALTER PAULSEN, Plaintiff,
v.
DOUG ROBERTS, Medical Monitor, Private Prison Monitoring Unit, CDOC, JERRY STEELE, Private Prison Monitoring Unit, CDOC, RICHARD MADRID, Drug and Alcohol/Addiction Services, KCCC Kit Carson Correctional Center, PATRICIA HEADLEY, CAC III, Drug and Alcohol/Addiction Services, KCCC, L. MORTIN-EARL, MA, CAC III, Drug and Alcohol/Addiction Services, KCCC, DESIREE ANDREWS, Health Services Administrator, KCCC, KATHY M. WILEY, NP, Health Care Provider, KCCC, KAREN C. MITCHELL, NP, Health Care Provider, KCCC, DAVID R. GROSS, PA, Health Care Provider, KCCC, and SUSAN M. TIONA, MD, Facility Physician, KCCC, Defendants.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommendation of United States Magistrate Judge (the “First Recommendation”) [Docket No. 204] filed on July 17, 2018, the Recommendation of United States Magistrate Judge (the “Second Recommendation”) [Docket No. 205] filed on July 19, 2018. In the First Recommendation, Magistrate Judge Kathleen M. Tafoya recommends that the Motion for Summary Judgment filed by defendants Susan Tiona, Karen Mitchell, David Gross, Richard Madrid, and Desiree Andrews [Docket No. 157] be granted. Docket No. 204 at 19. In the Second Recommendation, the magistrate judge recommends that the Motion for Summary Judgment [Docket No. 166] filed by defendant Doug Roberts be granted. Docket No. 205 at 11. Plaintiff filed a timely objection, objecting only to the Second Recommendation. Docket No. 206. Also before the Court is Plaintiff's Objection to U.S. Magistrate Judge's Recommendation for Summary Judgment for Defendant(s) Steele, Headley, L. Mortin-Earl and Wiley [Docket No. 214], which the Court construes as a response to its September 4, 2018 Order to Show Cause. See Docket No. 209. Finally, the Court takes up Plaintiff's Rebuttal to Defendants [sic] Objections/Responses to Plaintiff's Request for Production of Documents [Docket No. 200], Plaintiff's Objection to Defendants [sic] Protective Order Regarding Plaintiff's Production of Documents [Docket No. 201], and plaintiff's Motion for Review of Plaintiff's Rebuttal to Defendants [sic] Objection to Plaintiff's Request for Production of Documents (P.O.D.) on 03/23/2018, Also Plaintiff's Objection to Defendants [sic] Protective Order Regarding His Production of Documents Motion on 03/23/2018 [Docket No. 211]. In these filings, plaintiff challenges the magistrate judge's February 23, 2018 Protective Order [Docket Nos. 189-190], which states that defendants were not required to respond to plaintiff's January 18, 2018 discovery requests [Docket No. 185], and requests a decision on his challenges. See Docket No. 211. 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 166 at 1, ¶ 1. On March 17, 2011, during the CDOC intake process, plaintiff tested positive for the hepatitis C virus (“HCV”), genotype 1. MSMF 1. After intake, on April 6, 2011, plaintiff was assigned to Kit Carson Correctional Facility (“Kit Carson”). MSMF 6; see also Docket No. 179 at 1-2, ¶ 6. Kit Carson is a private prison that houses inmates for the CDOC. MSMF 1. Plaintiff sought treatment for HCV; however, under the CDOC's HCV treatment policy in force at that time, plaintiff was ineligible to begin HCV treatment because of the time remaining on his sentence. Docket No. 205 at 2; see also Docket No. 179 at 2, ¶ 6.[1] In April 2013, the CDOC revised its HCV treatment policy, removing the requirement that inmates have a specific amount of time remaining on their sentence in order to be eligible for treatment. Docket No. 166-1 at 7, ¶ 3. Despite this change, inmates were still required to complete drug and alcohol programs depending on their substance abuse level classification before receiving HCV treatment. Id. An inmate's substance abuse level was determined by the CDOC based on an inmate's background of substance abuse and other factors. See Docket No. 157 at 3-4, ¶ 14 and at 9, ¶ 59; MSMF 6, 27.

         In 2014, Mr. Roberts was an employee of the Private Prison Monitoring Unit (“PPMU”) of the CDOC. MSMF 19. He was a medical monitor, responsible for monitoring the provision of medical services within private prisons, including Kit Carson, to ensure that the private prisons' policies were in compliance with CDOC policies. MSMF 21-22. On April 29, 2014, Mr. Roberts sent a memorandum to plaintiff (the “April 2014 Memorandum”), stating that Mr. Roberts reviewed plaintiff's case with Dennis O'Neil, Out-Patient Clinical Supervisor, who told him that plaintiff was classified as “level 4c.” MSMF 26; Docket No. 166-2 at 4; see also Docket No. 157 at 10, ¶ 64 (record from August 2, 2013 indicating that plaintiff was scored substance abuse level 4c). Under the CODC's HCV treatment policy, an inmate at level 4c must complete an intensive drug and alcohol “Therapeutic Community” program prior to receiving HCV treatment. MSMF 27; Docket No. 166-1 at 7. A Therapeutic Community program was not available at Kit Carson, but Mr. Roberts' memorandum stated that plaintiff could “attend level 4b at [Kit Carson], which will make you eligible for Hepatitis treatment.” Docket No. 166-2 at 4; MSMF 27. Plaintiff states that, in spite of Mr. Roberts' memorandum, plaintiff was denied level 4b treatment “because he was over qualified.” Docket No. 179 at 6, ¶ 28.

         In July, 2014, plaintiff was transferred to the CDOC's Buena Vista Correctional Facility (“Buena Vista”) where he was placed in its Therapeutic Community program, after which he began receiving HCV treatment. Docket No. 205 at 3 (citing Docket No. 158-1).

         On April 15, 2015, plaintiff filed his complaint in this case. Docket No. 1. He brings claims against Mr. Roberts pursuant to 42 U.S.C. § 1983 under the Eighth Amendment and Fourteenth Amendment. Docket No. 205 at 4; see also Docket Nos. 10, 72.[2] On October 18, 2017, defendants Desiree Andrews, David R. Gross, Richard Madrid, Karen C. Mitchell, and Susan M. Tiona (collectively, the “medical defendants”) filed their motion for summary judgment. Docket No. 157. The next day, Mr. Roberts filed his motion for summary judgment. Docket No. 166. On January 18, 2018, after the summary judgment motions were fully briefed and more than four months after the close of discovery, plaintiff filed discovery requests. Docket No. 185; see also Docket No. 113 (“ The Discovery Cut-Off is 8/4/17.”). On February 20, 2018, defendants moved for a protective order excusing any response to the discovery requests on the basis that they were untimely. Docket No. 187. On February 23, 2018, the magistrate judge entered the requested protective order. Docket Nos. 189, 190. On March 28, 2018, plaintiff filed his rebuttal and objection to the protective order, which were dated March 23, 2018, and which the Court will construe as objections to the protective order. Docket Nos. 200, 201. On July 17 and 19, 2018, the magistrate judge issued her Recommendations that the motions for summary judgment be granted. Docket Nos. 204, 205. On August 6, 2018, plaintiff filed his objection to the Second Recommendation. Docket No. 206. On September 4, 2018, the Court ordered plaintiff to show cause “why his claims against defendants Jerry Steele, Patricia Headley, L. Mortin-Earl, and Kathy M. Wiley, NP, should not be dismissed for failure to serve pursuant to Fed.R.Civ.P. 4(m).” Docket No. 209 at 2. On September 10, 2018, plaintiff filed his motion for review. Docket No. 211. On September 14, 2018, plaintiff filed an “Objection” discussing his allegations against defendants Jerry Steele, Patricia Headley, L. Mortin-Earl, and Kathy M. Wiley (collectively, the “unserved defendants”), which the Court construes as a response to its September 4, 2018 order to show cause regarding the unserved defendants.

         II. STANDARDS OF REVIEW

         For magistrate judge orders on non-dispositive matters, the Court must “consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). For dispositive motions, 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

         A. First Recommendation

         Plaintiff has not filed an objection to the First Recommendation. See Docket No. 206 at 1. Accordingly, the Court has reviewed the First Recommendation to satisfy itself that there is “no clear error on the face of the record.”[3] Fed.R.Civ.P. 72(b), Advisory Committee Notes. The Court finds no clear error with respect to Magistrate Judge Tafoya's recommendation that the medical defendants' motion for summary judgment be granted. Plaintiff has not shown that there is a genuine issue of material fact that the medical defendants violated plaintiff's constitutional rights. The Court will therefore grant the motion for summary judgment [Docket No. 163] filed by the medical defendants. The magistrate judge recommends that plaintiff's other pending motions be denied as moot. Docket No. 204 at 19. Because, as discussed below, this order resolves all plaintiff's claims, the Court will also accept the magistrate judge's recommendation that plaintiff's other motions be denied as moot.

         B.Second ...


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