Dawson v. Archambeau

          OPINION AND ORDER ON REMAND; GRANTING MOTIONS FOR SUMMARY JUDGMENT IN PART

          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court pursuant to the “Order and Judgment” and Mandate issued by the Tenth Circuit Court of Appeals affirming in part and reversing in part the Court's order granting summary judgment in favor of all defendants and remanding this matter for further consideration (# 202 and # 205).^[1]

         FACTS

         The following facts are undisputed except where noted. They are construed in the light most favorable to Mr. Dawson, and are supplemented as necessary in the court's analysis.

         Mr. Dawson is an inmate in the custody of the Colorado Department of Corrections (“CDOC”) and has been incarcerated since 1992. Mr. Dawson suffers from Hepatitis C. CDOC health care providers first diagnosed Mr. Dawson with Hepatitis C about 25 years ago. Mr. Dawson asserts that his Hepatitis C has progressed over the term of his incarceration and that he is now experiencing symptoms consistent with end-stage liver disease.^[2] (# 102 at 3-9).

         During the pertinent times herein, Mr. Dawson was housed at the Fremont Correctional Facility (“FCF”) in Canon City, Colorado. He alleges that various medical providers at the FCF along with CDOC supervisory officials wrongfully denied him treatment for Hepatitis C pursuant to the CDOC's Clinical Practice Guidelines for the Prevention, Identification and Treatment of Viral Hepatitis C (“Clinical Standards”) and for his related symptoms. (#102 at 7-11).

         Before 2015, CDOC inmates with Hepatitis C received conventional treatment with interferon and anti-viral medications, which treatment was not always successful in eliminating the disease and often had significant side effects. Beginning in 2015, inmates eligible under the CDOC Clinical Standards applicable to treatment of Hepatitis C could receive new drugs that had impressive cure rates of 95-99% and few significant side effects. Such drugs, known by brand names such as Harvoni and Epclusa, although more effective, were also very costly. (#179-3 at 2, #102 at 7-10).

         2013-2014

         As noted, the 2013 CDOC Clinical Standards for treatment for Hepatitis C used “a combination of pegylated interferon and ribavirin to treat Hepatitis C”. (# 141-20 at 14-17). Interferon-based therapy did not cure the virus in all cases, but it was considered to be “helpful to the liver.” (# 141-21 at 8). To be eligible for such treatment, the 2013 Clinical Standards required that 1) an inmate complete an approved drug and alcohol treatment program which was 2) to be followed by a liver biopsy then 3) reviewed for Hepatitis C treatment. (# 141-20 at 7). Prior to requesting a liver biopsy, CDOC medical providers recorded relevant information on a Hepatitis C Evaluation Worksheet that was submitted to the Infectious Disease (“ID”) Committee for consideration. The ID committee determined whether an inmate was eligible for treatment, and if so, the inmate had a liver biopsy. For treatment, the 2013 Clinical Standards required a finding of stage 3 fibrosis in the liver. Inmates with stage 2 fibrosis were considered on a case by case basis, but inmates with stage 1 fibrosis were not eligible to receive treatment at all. They were to be monitored for progression of the disease. (# 141-20 at 11-14). The 2013 Clinical Standards recommended that periodic screening (annual liver ultrasounds and lab screens every 6 months) of inmates with chronic Hepatitis C and cirrhosis be considered. (#141-20 at 15).

         On November 26, 2013, Mr. Dawson states that he requested Hepatitis C treatment during an appointment with Dr. Ireland, a physician at FCF. He complained of “dark tea colored urine, itching, fatigue, swelling in my stomach, light colored stool, and [an occasional] bitter taste in my mouth” along with “disabling pain.” (# 102 at 12). However, it does not appear that Mr. Dawson described the pain he was experiencing, nor asked for treatment to alleviate it. The treatment notes do not indicate that that question of pain was addressed by either Mr. Dawson or Dr. Ireland. Instead, it appears that both Dr. Ireland and Mr. Dawson viewed the recitation of his symptoms in the context of treatment for Mr. Dawson's Hepatitis C. Dr. Ireland informed Mr. Dawson that he needed to obtain documentation verifying that he had previously completed drug and alcohol treatment in accordance with the 2013 Clinical Standards.^[3] Dr. Ireland then scheduled Mr. Dawson to meet with someone from the Mental Health Department to assess his condition and determine his eligibility for Hepatitis C treatment. (# 102 at 12).

         In January 2014, Mr. Dawson had a follow-up appointment with Ms. Sicotte, a nurse practitioner at FCF. He told Ms. Sicotte that he had seen Dr. Ireland in November 2013, but had not yet received any treatment for his Hepatitis C. He informed Ms. Sicotte that he was still suffering from all of the previously listed Hepatitis C symptoms, including “disabling pain.” Again, the record does not reflect that Mr. Dawson described his pain nor requested medication to relieve it. Like Dr. Ireland, it appears that Ms. Sicotte understood Mr. Dawson's description of symptoms to be for the purpose of qualifying for treatment for his underlying Hepatitis C. Ms. Sicotte did not provide any treatment for Mr. Dawson's pain symptoms, but informed him that he was scheduled to meet with the Mental Health Department to discuss his eligibility to receive Hepatitis C treatment. (# 102 at 12).

         Several weeks later, on January 29, 2014, Mr. Dawson met with Mr. Frickey, a nurse practitioner at FCF, to discuss treatment options for his Hepatitis C. Mr. Dawson informed Mr. Frickey about his appointments with Dr. Ireland and Ms. Sicotte and recited his various symptoms noting that his acute abdominal pain, was “not improving.” (# 102 at 12). Mr. Dawson states that Mr. Frickey assured him that he would be receiving Hepatitis C treatment, however, Mr. Frickey states that after advising Mr. Dawson of the risks and benefits of the interferon treatment, Mr. Dawson declined it. (#102 at 12, # 152-3 at 2). As with Dr. Ireland and Ms. Sicotte, there is nothing in the record indicating that Mr. Dawson asked for pain relief nor that Mr. Frickey provided any.

         2015

         According to the declaration of Susan Tiona, M.D., who became the Chief Medical Officer at the CDOC in April 2015, three Hepatitis C Clinical Standards were serially issued in May 2015, October 2015, and November 2015 (hereinafter the “2015 Clinical Standards).^[4](#179-2 at 2). The 2015 Clinical Standards included a new, more effective regimen designed to cure Hepatitis C by use of “direct-acting antiviral medications”. This approach included the newly available drug, Harvoni. (# 179-2 at 58-9). However, not all CDOC inmates with Hepatitis C were automatically eligible for such treatment. Like the 2013 Clinical Standards, the various 2015 Clinical Standards required that inmates complete an approved drug and alcohol treatment program in order to be eligible.^[5] (# 179-2 at 4-6). In addition, eligibility turned on the inmate's degree of liver fibrosis^[6], reflected in an APRI score. If an inmate's APRI score was less than 0.7, he or she was categorically excluded from treatment. Inmates with APRI scores between 0.4 and 0.7 were entitled to yearly screenings for liver fibrosis and referrals to drug and alcohol treatment. Inmates with APRI scores below 0.4 received only annual screenings for liver fibrosis.^[7] (# 179-2 at 6, 53-58). As with the 2013 Clinical Standards, when an inmate requested Hepatitis C treatment, CDOC medical providers compiled a Hepatitis C Evaluation Worksheet, which was submitted to the Infectious Disease (“ID”) Committee for consideration prior to authorization of treatment. (# 179-2 at 7, 57).

         In August 2015, Mr. Dawson saw Ms. Hibbs, a nurse practitioner at the FCF, to discuss treatment for his Hepatitis C. Again, Mr. Dawson complained of all of the prior identified symptoms including “disabling pain, ” but the record does not reflect that he requested pain relief or that Ms. Hibbs provided any. (# 102 at 12). Because Mr. Dawson did not produce any documentation that he completed an approved drug and alcohol treatment program as required, Ms. Hibbs counseled him to do so and gave him the Patient Contract to sign. She also began his Hepatitis C Evaluation Worksheet.

         This Action

         In this action, Mr. Dawson proceeds pro se.^[8] He asserted three claims in the Amended Complaint (# 102), each grounded on 42 U.S.C. § 1983:

• Claim One - that Mr. Raemisch, Dr. Tiona, and Mr. Archambeau^[9] violated his right to equal protection (invoking the 14^th Amendment) by creating, implementing, and applying a discriminatory policy to delay and deny him a cure for Hepatitis C, while providing a cure to other similarly situated inmates, and that these defendants were deliberately indifferent to his serious medical needs, (invoking the 8th Amendment);

• Claim Two - that Dr. Ireland, Ms. Sicotte, Mr. Frickey, and Ms. Hibbs were deliberately indifferent to his serious medical needs, in failing to monitor his Hepatitis C and in failing to provide any treatment for symptoms of that disease (invoking the 8^th Amendment);

• Claim Three - that Dr. Ireland, Ms. Sicotte, Mr. Frickey, and Ms. Hibbs violated his due process rights by failing to follow the Clinical Standards for treatment of his Hepatitis C (invoking the 14^th Amendment).

         The Defendants moved for summary judgment on all claims, asserting qualified immunity because: (i) Mr. Dawson did not come forward with evidence that each Defendant personally participated in the constitutional violation and (ii) Mr. Dawson did not show that the actions he alleges constitute a constitutional violation. This Court issued summary judgment in favor of the Defendants on all claims (# 186). Mr. Dawson appealed to the 10^th Circuit Court of Appeals, and it affirmed entry of summary judgment as to the as entirety of Claim Three, the portion of Claim Two alleging that Dr. Ireland, Ms. Sicotte, Mr. Frickey, and Ms. Hibbs were deliberately indifferent in failing to follow the Clinical Standards for treatment of Mr. Dawson's Hepatitis C, and the portion of Claim One alleging a 14^th Amendment violation.^[10] It reversed and remanded the matter for further consideration of the alleged 8^th Amendment violation by Dr. Ireland, Ms. Sicotte, Mr. Frickey, and Ms. Hibbs in Claim Two based on “ disabling pain” reported by Mr. Dawson. (# 202 at 2). It also directed consideration of “Mr. Dawson's claims that Rick Raemisch, Susan Tiona, and Jeff Archambeau were deliberately indifferent to his serious medical needs, in violation of the [8^th] Amendment.” (# 202 at 2).

         Thus, the Court now focuses on whether there is evidence sufficient to make a prima facie showing that (1) Dr. Ireland, Ms. Sicotte, Mr. Frickey, and Ms. Hibbs were deliberately indifferent to Mr. Dawson's complained of symptoms (primarily “disabling pain”) and (2) that Mr. Raemisch, Mr. Archambeau, and Dr. Tiona were deliberately indifferent to his serious medical needs. (# 202 at 13). The Court has considered the record which includes the motions for summary judgment, responses, replies, and surreplies, all evidence submitted in support and opposition to those filings^[11]. In addition, the Court has considered all of Mr. Dawson's statements or allegations (regardless of the form in which they have been submitted) to the extent they are arguably based upon his personal observation or knowledge. On this record, Court finds and concludes as follows.

         ANALYSIS

         A. Procedural Standards

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Produce's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         B. Qualified Immunity

         The defendants attack Mr. Dawson's 8^th Amendment claims by raising the defense of qualified immunity.^[12] Qualified immunity protects individual state actors from civil liability if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012). When that defense is raised, the burden shifts to Mr. Dawson to establish two prongs: (i) that he has adequately asserted a violation of a constitutional right, and (ii) the contours of that right were “clearly established” by existing Supreme Court or 10^th Circuit precedent (or the weight of authority from other circuits) at the time of the events herein. T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017).

         For all practical purposes, the question of whether the evidence shows a violation of a constitutional right is indistinguishable from the inquiry that the Court would make in determining whether the plaintiff has come forward with sufficient evidence to establish a prima facie claim in accordance with Rule 56. The plaintiff must produce sufficient evidence, which if true, would make a prima facie showing of a cognizable claim. The Court considers the evidence in the light most favorable to the plaintiff and assesses whether it is sufficient to demonstrate the violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001).

         The second prong focuses upon whether the right was “clearly established” at the time it was violated. The “clearly established” analysis examines whether there was existing precedent, at the time of the challenged events, that recognized a constitutional violation in similar circumstances. Courts are required to conduct the “clearly established” analysis at a “high degree of specificity, ” rather than in generalities. District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018). However, the specificity requirement is not so exacting that “the very action in question [must have] previously been held unlawful.” Ziglar v. Abassi, 137 S.Ct. 1843, 1866, 198 L.Ed.2d 290 (2017).

         C. Deliberate Indifference to Serious Medical Needs

         The 8^th Amendment protects convicted prisoners from cruel and unusual punishment. This includes the right to receive “humane conditions of confinement, ” which includes the basic necessities of adequate food, clothing, shelter, and medical care, and jail and prison officials must act reasonably to ensure that prisoners receive such basic needs. Barney v. Pulsipher, 153 F.3d 1299, 1310 (10th Cir. 1998). It is well established that prison officials violate the 8th Amendment if they are deliberately indifferent to a prisoner's serious medical needs because such conduct constitutes the unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

         To make a prima facie showing that the named defendants violated the 8^th Amendment, Mr. Dawson must come forward with evidence that, viewed most favorably to him, would (1) objectively prove a “serious” medical need and that (2) subjectively, prove that each defendant was aware that the serious medical need posed a substantial risk to Mr. Dawson's health or safety and notwithstanding such knowledge was deliberately indifferent to it. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Deliberate indifference does not require a showing of express intent to harm Mr. Dawson, only that the official acted, failed to act or delayed action such as treatment, referral or examination despite his knowledge of a substantial risk of serious harm. Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005); see also Farmer v. Brennan, 511 U.S. 825, 836 (1994). A delay in medical care “only constitutes an [8^th] Amendment violation where the plaintiff can show that the delay resulted in substantial harm, ” but such harm may be shown by proof that “considerable pain resulted from the delay.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001); Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000).

         D. Individual and Supervisory Capacity

         A prison official may be sued in two different capacities - individual and official. As an individual, he or she can have either personal or supervisory liability. Personal liability under § 1983 must be based on personal involvement in the alleged constitutional violation. Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Supervisory liability arises when a defendant-supervisor “creates, promulgates, [or] implements . . . a policy . . . which subjects, or causes to be subjected that plaintiff to the deprivation of any rights . . . secured by the Constitution.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). However, there is no supervisory liability under § 1983 based solely on the actions of one's subordinates. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities, a prisoner must show: “(1) personal involvement[, ] (2) causation, and (3) required state of mind.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013); see also Dodds, 614 F.3d at 1199. To establish causation, a prisoner must show that a supervisor “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Dodds, 614 F.3d at 1200. As to the third element, a plaintiff can “establish the requisite state of mind by showing that [a supervisor] acted with deliberate indifference.” Perry v. Durborow, 892 F.3d 1116, 1122 (10th Cir. 2018). Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “[A] local government policymaker is deliberately indifferent when he deliberately or consciously fails to act when presented with an obvious risk of constitutional harm which will almost inevitably result in constitutional injury of the type experienced by the plaintiff.” Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir. 1997) (quotations omitted).

         An official capacity claim, in all respects other than name, is a claim against the governmental entity employing the official. Monell, 436 U.S. at 690 n.55, 98 S.Ct. at 2018. Thus, insofar as Mr. Dawson asserts § 1983 official capacity claims against Mr. Archambeau, Mr. Raemisch, and Dr. Tiona, such claims are against the CDOC. Similar to the elements of supervisory liability, to establish a prima facie § 1983 claim against a governmental entity, Mr. Dawson must (i) identify a government's policy or custom; (ii) a causal relationship between the policy and the underlying violation or injury; and (iii) “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769; Monell, 436 U.S. at 658, 691-92, 694, 98 S.Ct. at 2018; Brown, 520 U.S. at 407, 117 S.Ct. at 1382.

         E. Discussion

         Claims against the ...