United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
JUDGMENT, ADOPTING RECOMMENDATION, AND DISMISSING
S. Krieger Senior United States District Judge.
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.
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.
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.
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.
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.
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.
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 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.
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'
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.
The Eagle ...