United States District Court, D. Colorado
JAMES R. DAWSON, Jr., Plaintiff,
JEFF ARCHAMBEAU, CEO of Colorado Health Partners; RICK RAEMISCH, Executive Director of the Colorado Department of Corrections; SUSAN TIONA, Chief Medical Officer of the Colorado Department of Corrections; C. IRELAND, FCF Health Providers; D. HIBBS; T. SICOTTE; and R. FRICKEY, Defendants.
OPINION AND ORDER ON REMAND; GRANTING MOTIONS FOR
SUMMARY JUDGMENT IN PART
S. Krieger Senior United States District Judge
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 #
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.
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. (# 102 at 3-9).
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).
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
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).
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. 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).
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).
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.
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).(#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. (# 179-2
at 4-6). In addition, eligibility turned on the
inmate's degree of liver fibrosis, 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. (# 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).
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
action, Mr. Dawson proceeds pro se. 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 violated his right to equal protection
(invoking the 14th 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 8th 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 14th Amendment).
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 10th
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 14th Amendment violation. It reversed
and remanded the matter for further consideration of the
alleged 8th 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
[8th] Amendment.” (# 202 at
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. 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.
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).
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.
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).
defendants attack Mr. Dawson's 8th Amendment
claims by raising the defense of qualified
immunity. 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
10th 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.
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).
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).
Deliberate Indifference to Serious Medical Needs
8th 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).
a prima facie showing that the named defendants
violated the 8th 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
[8th] 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).
Individual and Supervisory Capacity
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).
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.
against the ...