Grady v. Edmonds et al

Filing 124

AMENDED ORDER adopting in full 122 REPORT AND RECOMMENDATION. Granting 113 Defendants Edmonds and McLaughlin's Motion for Summary Judgment. Except for plaintiffs equal protection claim against defendants Edmonds and McLaughlin, which is DI SMISSED WITHOUT PREJUDICE, the remainder of this case and action are DISMISSED WITH PREJUDICE, each party to pay their own fees and costs. Because this disposes of all the claims, this action in its entirety, and all claims asserted therein, are DISMISSED, and judgment shall be entered accordingly, by Judge David M. Ebel on 3/2/09. (ebs, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C i v i l Action No. 06-cv-01612-DME-KLM J E R R Y GRADY, Plaintiff, v. C A P T A I N EDMONDS, Dr. McLAUGHLIN, and C A T H I E HOLST Defendants. A M E N D E D ORDER T h i s matter comes before this Court on the Magistrate Judge's Report and R e c o m m e n d a t i o n dated October 30, 2008 ("Report"). The Report addresses the D e f e n d a n t s ' motion for summary judgment (Doc. 113) and the Plaintiff's r e s p o n s e (Doc. 121). The Report recommends granting the Defendants' motion f o r summary judgment. Because neither party has filed any objections to the R e p o r t , this Court has discretion to "review [the M]agistrate's [R]eport under any s t a n d a r d it deems appropriate." Summers v. State of Utah, 927 F.2d 1165, 1 1 6 7 - 6 8 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150, 154 (1985)). When confronting similar scenarios, this Court has reviewed magistrates' reports t o ensure "that there is no clear error on the face of the record." Lyons v. WM S p e c i a l t y Mortg. LLC, 2008 WL 2811810, *1 (D. Colo. 2008) (citing Fed. R. Civ.

P . 72(b) Advisory Committee Notes); Ramsey v. Mansfield, 2008 WL 3984589, * 2 (D. Colo. 2008) (reviewing a magistrate's report and recommendation with no o b j e c t i o n s for clear error on the face of the record, though stating that the court i s "not required to do so"); see also United States v. Aguilar, 90 F. Supp. 2d 1 1 5 2 , 1157 n.1 (D. Colo. 2000) (explaining that "this standard of review is s o m e t h i n g less than a `clearly erroneous or contrary to law' standard of review, w h i c h in turn is less than a de novo review") (citations omitted). Applying that a p p r o a c h to this case, this Court determines that there is no clear error on the f a c e of the record, and adopts the Magistrate's Report and Recommendation. Accordingly, the Defendants' motion for summary judgment is hereby GRANTED. I. Background J e r r y Grady ("Grady") is currently incarcerated by the Colorado D e p a r t m e n t of Corrections ("CDOC"). Proceeding pro se and in forma pauperis, G r a d y sued nine Colorado prison officials under 42 U.S.C. § 1983, alleging that h e is disabled due to a prior work-related injury and that Defendants assigned h i m to prison jobs that required him to perform duties beyond his physical c a p a b i l i t i e s . In an order dated October 10, 2007, this Court adopted Magistrate J u d g e Schlatter's Report and Recommendation recommending the dismissal of a l l claims against all defendants except the individual capacity Eighth A m e n d m e n t claim against Defendants Edmonds and McLaughlin. This Court a l s o granted Grady leave to amend his complaint to state an equal protection

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c l a i m against Defendant Edmonds and an American with Disabilities Act (ADA) c l a i m against CDOC. Grady filed a document titled "Plaintiff's Claims of Eighth Amendment and D e l i b e r a t e l y Indifferen [sic] Violations" on January 2, 2008. This Court will f o l l o w the Magistrate's lead and construe this document as an amended c o m p l a i n t . Grady's amended complaint alleges additional facts against D e f e n d a n t Edmonds, but does not raise an ADA claim or add CDOC as a d e f e n d a n t . The amended complaint does, however, name Cathie Holst as an a d d i t i o n a l defendant and, in the body of the complaint, discusses factual a l l e g a t i o n s relating to Lt. Gillespie. This Court agrees with the Magistrate that t h e complaint fails to allege any facts in support of the addition of Cathie Holst a s a defendant in this case, and that Lt. Gillespie is not properly before this C o u r t because Grady's claims against Lt. Gillespie were already dismissed in o u r prior order. This Court will not, therefore, allow Grady to proceed with his c l a i m s against either of these defendants. I I . Discussion C h o o s i n g not to address the substance of Grady's equal protection claim, t h e Report recommends that this Court dismiss that claim without prejudice for f a i l u r e to exhaust administrative remedies. "There is no question that exhaustion i s mandatory under the [Prison Litigation Reform Act] and that unexhausted c l a i m s cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007). The Report explains that, even with a liberal reading of the administrative

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g r i e v a n c e s , it is clear that Grady has not exhausted all three steps of the state's a d m i n i s t r a t i v e process with regards to his equal protection claim. Although this C o u r t doubts that Grady's equal protection claim could withstand a motion for s u m m a r y judgment even if he had properly exhausted his administrative r e m e d i e s , this Court will follow the Magistrate's lead and dismiss this claim w i t h o u t prejudice for failure to exhaust. T o prevail on his remaining Eighth Amendment claim, Grady must show t h a t Defendants McLaughlin and/or Edmonds were deliberately indifferent to his s e r i o u s medical needs. See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). " D e l i b e r a t e indifference" involves both an objective and a subjective c o m p o n e n t . The objective component is met if the deprivation is " s u f f i c i e n t l y serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). . . . T h e subjective component is met if a prison official "knows of and d i s r e g a r d s an excessive risk to inmate health or safety." Farmer, 511 U.S. a t 837. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The Defendants in t h i s case concede that Grady suffers from a sufficiently serious medical c o n d i t i o n , so Grady need only prove the subjective component of his Eighth A m e n d m e n t claim to prevail. This Court finds no clear error in Magistrate Judge Mix's conclusion that G r a d y has failed to provide evidence "that Defendant McLaughlin intentionally d i s r e g a r d e d an excessive risk of harm to Plaintiff." (Doc. 122 at 16.) The bulk o f Grady's allegations against Dr. McLaughlin claim that Dr. McLaughlin p r o v i d e d inadequate medical treatment and evaluation. The record shows that

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G r a d y received regular medical attention in prison, and Grady has provided no e v i d e n c e to support his allegations that his treatment or evaluation was provided i n an intentionally inadequate manner. Grady's mere disagreement with the t r e a t m e n t or evaluation he was given will not suffice to establish an Eighth A m e n d m e n t claim against Dr. McLaughlin. See Oxendine v. Kaplan, 241 F.3d 1 2 7 2 (10th Cir. 2001) ("[A] prisoner who merely disagrees with a diagnosis or a p r e s c r i b e d course of treatment does not state a constitutional violation.") ( i n t e r n a l citations and quotations omitted). Aside from his disagreement with the t r e a t m e n t and evaluation he received, Grady alleges that Dr. McLaughlin c h a n g e d his medical recommendations in response to Captain Edmonds's i n s t r u c t i o n s . However, Grady has given this Court nothing beyond his own c o n c l u s o r y allegations to suggest that Dr. McLaughlin's evaluations were based o n Captain Edmond's instructions, and not Dr. McLaughlin's own medical o p i n i o n . As the Magistrate noted, both defendants denied this allegation, and G r a d y "has not shown that he has any personal knowledge or other evidence t h a t Defendant Edmond asked Defendant McLaughlin to change or remove any o f Plaintiff's work restrictions." (Doc. 122 at 15.) This Court will, therefore, g r a n t summary judgment for Defendant McLaughlin. This Court also finds no clear error in Magistrate Judge Mix's conclusion t h a t Grady has not provided sufficient evidence of his Eighth Amendment claim a g a i n s t Captain Edmonds to withstand a motion for summary judgment. As a p r e l i m i n a r y matter, this Court approves of the Magistrate's decision to treat

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G r a d y ' s initial complaint as an affidavit because Grady submitted that complaint u n d e r penalty of perjury. See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1019 ( 1 0 t h Cir. 2002) ("A district court may treat a verified complaint as an affidavit f o r purposes of summary judgment if it satisfies the standards for affidavits set o u t in Rule 56(e).") (citation and quotation omitted). This Court also finds no c l e a r error in the Magistrate's determination that Grady's statements in his a m e n d e d complaint and response cannot create issues of fact at this stage b e c a u s e neither of those was submitted under oath. Focusing exclusively on t h e allegations contained in Grady's initial complaint and the evidence he s u b m i t t e d in this case, the Magistrate did not clearly err in concluding that G r a d y had failed to raise any issues of material fact. Grady alleges that Captain Edmonds threatened to send him to s e g r e g a t i o n if he did not continue working, despite Grady's complaints that the w o r k caused him extreme pain. Grady further alleges that Captain Edmonds a s s i g n e d him tasks that Captain Edmonds knew were beyond Grady's physical c a p a b i l i t i e s . Finally, Grady alleges that Captain Edmonds prevented Grady from r e c e i v i n g an impartial medical evaluation and directed Dr. McLaughlin to d e c r e a s e the restrictions on the work Captain Edmonds could make Grady p e r f o r m . Without any supporting factual assertions submitted under oath, let a l o n e any supporting evidence, these conclusory allegations cannot withstand a m o t i o n for summary judgment. See Trevizo v. Adams, 455 F.3d 1155, 1159 ( 1 0 t h Cir. 2006) ("Plaintiffs seeking to overcome a motion for summary judgment

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m a y not `rest on mere allegations' in their complaint but must `set forth specific f a c t s showing that there is a genuine issue for trial.'") (quoting Fed. R. Civ. P. 56(e)). III. Conclusion F o r the forgoing reasons, Magistrate Judge Mix's Report and R e c o m m e n d a t i o n is adopted in full. Defendants Edmonds and McLaughlin's M o t i o n for Summary Judgment is GRANTED. Except for plaintiff's equal p r o t e c t i o n claim against defendants Edmonds and McLaughlin, which is D I S M I S S E D WITHOUT PREJUDICE, the remainder of this case and action are D I S M I S S E D WITH PREJUDICE, each party to pay their own fees and costs. B e c a u s e this disposes of all the claims, this action in its entirety, and all claims a s s e r t e d therein, are DISMISSED, and judgment shall be entered accordingly.

D O N E AND SIGNED this

2nd

day of March, 2009.

B Y THE COURT: s / David M. Ebel U.S. Circuit Court Judge

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