Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Mara v. Thrailkill

United States District Court, D. Colorado

June 20, 2019

GABRIEL O'MARA, Plaintiff,
v.
LEAH THRAILKILL, HALEY LNU, JESSICA DONDERO, LYNN LNU, MARGARET WEAR, DIANA MCLAIN, RACHEL SEGERDAHL, TREVOR E., VANESSA LNU, JEREMY LNU, GREGORY VAN WYK, EAGLE COUNTY SHERIFF, and CORRECT CARE SOLUTIONS, Defendants.

          OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, ADOPTING RECOMMENDATION, AND DISMISSING CLAIMS

          Marcia S. Krieger Senior United States District Judge.

         THIS MATTER comes before the Court pursuant to Defendants Gregory Van Wyk and Eagle County Sheriff's (“the Eagle Defendants”) Motion for Summary Judgment (# 29), to which Mr. O'Mara filed no response; and the Magistrate Judge's May 16, 2019 Recommendation (# 52) that Mr. O'Mara's claims against those Defendants who have not yet been served with process - that is, all Defendants other than the Eagle Defendants - be dismissed pursuant to Fed.R.Civ.P. 4(m), to which no party has filed Objections.

         FACTS

         According to the Amended Complaint (# 7), Mr. O'Mara suffers from a gastrointestinal illness called ulcerative colitis. He manages that condition through the use of a medication called Humira, which he takes on a bi-weekly basis. Failure to take Humira as scheduled can lead to “flare-ups” of his condition, resulting in significant pain and bloody stools.

         In August 2016, Mr. O'Mara was convicted of a crime and sentenced to serve 60 days of incarceration at the Eagle County Detention Facility. When Mr. O'Mara arrived at the facility on August 10, 2016, he informed the facility's medical staff (including many of the named Defendants herein) that his next dose of Humira was scheduled for August 12, 2016. Subject to the discussion below, Mr. O'Mara alleges that he was not provided with Humira for several weeks, during which time he experienced constant painful flare-ups. Eventually, medical staff noticed an “alarming amount of blood in his stool” and eventually began administering Humira to Mr. O'Mara beginning on or about September 1, 2016. By that point in time, the regular dose of Humira was ineffective at treating his continuing symptoms, but Mr. O'Mara contends that the facility's medical staff failed to provide him with further treatment to alleviate those symptoms. On September 10, 2016, Mr. O'Mara was finally taken to the emergency room at a local hospital, where his symptoms were finally addressed. Mr. O'Mara was released from the detention facility on September 29, 2016.

         In March 2017, Mr. O'Mara was convicted of another offense and sentenced to a term of 150 days in the Eagle County Detention Facility. Mr. O'Mara began that sentence on or about March 16, 2017, and was initially provided with Humira as scheduled. However, on May 1, 2017, the device Mr. O'Mara used to self-administer the Humira malfunctioned. Although Mr. O'Mara arranged for his pharmacist to promptly provide a replacement dosage to the facility, that replacement had still not arrived by May 11, 2017, and Mr. O'Mara complained to prison staffers about the situation. The following day, Mr. O'Mara was transferred to the Summit County Detention Facility. Mr. O'Mara believes that this transfer was a purposeful attempt by unspecified persons to relieve Eagle County of the burden of providing the Humira to him.

         Mr. O'Mara received a dose of Humira upon arriving in Summit County, but because of the delay in administering it, he began to experience another flare-up. On May 18, 2017, Summit County officials transferred Mr. O'Mara to a local hospital for treatment of the flare-up. Mr. O'Mara was released from the hospital the following day and returned to the Eagle County Detention Facility with a prescription for a regimen of steroids to help alleviate his symptoms. Mr. O'Mara contends that the medical staff stopped administering the steroids by June 1, 2017, causing his flare-up symptoms to intensify. On numerous occasions thereafter, Mr. O'Mara made many requests to the facility's medical staff for additional treatment, but those requests were ignored. Mr. O'Mara was released from the facility on July 18, 2017.

         Based on these facts, Mr. O'Mara commenced this action, asserting numerous claims pursuant to 42 U.S.C. § 1983 against various Defendants under various theories, all springing from the contention that the Defendants demonstrated deliberate indifference to Mr. O'Mara's serious medical needs in violation of the 8th Amendment to the U.S. Constitution, and several claims of common-law negligence or negligent supervision, presumably under Colorado law, against various Defendants.

         To date, Mr. O'Mara has only filed affidavits of service reflecting service of process on the two Eagle Defendants (# 9, 10); all other Defendants remain un-served. As a result, on March 8, 2019, the Magistrate Judge issued an Order (# 47) noting the lack of service and directing Mr. O'Mara[1] to show cause why the claims against the un-served Defendants should not be dismissed pursuant to Fed.R.Civ.P. 4(m). A copy of that Order was served on Mr. O'Mara at his address of record (# 49). Mr. O'Mara did not respond to the Order by the deadline given by the Magistrate Judge, and on May 16, 2019, some nine months after this case was commenced, the Magistrate Judge issued a Recommendation (# 52) that the claims against the un-served Defendants be dismissed pursuant to Fed.R.Civ.P. 4(m). That Recommendation was also served on Mr. O'Mara at his address of record, but neither Mr. O'Mara nor any other party in this action has filed Objections to it.

         The Eagle Defendants move (# 29) for summary judgment on the claims against them, arguing: (i) as a factual matter, the undisputed evidence in the record reveals that Mr. O'Mara received his Humira on his regular schedule, and therefore, there is no evidence to support his deliberate indifference claim against any Defendant; (ii) Mr. O'Mara's inability to prove any deliberate indifference claim prevents him from establishing his municipal liability claim against the Eagle County Sheriff's Office or Captain Van Wyk; and (iii) to the extent Mr. O'Mara can establish a claim against Captain Van Wyk, Captain Van Wyk is entitled to qualified immunity. The Court granted (# 43) Mr. O'Mara an extension of time until March 14, 2019 “or such other date as the Magistrate Judge may determine” for the submission of Mr. O'Mara's response to the Eagle Defendants' motion. Although the Magistrate Judge subsequently permitted Mr. O'Mara's counsel to withdraw, nothing in the record indicates that the Magistrate Judge granted a further extension of time to Mr. O'Mara to file a summary judgment response. To date, Mr. O'Mara has not filed any response to the Eagle Defendants' motion.

         ANALYSIS

         A. The Recommendation

         The Recommendation advised the parties of the operation of Fed.R.Civ.P. 72(b), requiring any Objections to the Recommendation to be filed with 14 days of service. The record reflects that Mr. O'Mara was served with a copy by mail, at his address of record, sent the same date the Recommendation was issued. More than 14 days have passed since the Recommendation was served and no party has filed Objections. In such circumstances, the Court reviews the Recommendation under whatever standard of review it deems appropriate. Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). The Court has reviewed the Recommendation for clear error and, finding none, adopts the Recommendation in its entirety. Accordingly, the claims against all Defendants other than the Eagle Defendants are dismissed without prejudice, pursuant to Fed.R.Civ.P. 4(m) and 12(b)(5), for failure to serve process.

         B. The Eagle ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.