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 “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).
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, ¶
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.
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.
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).
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. 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.
STANDARDS OF REVIEW
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
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).
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.” 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