Glasser v. King et al

Filing 308

ORDER that the Recommendation of United States Magistrate Judge ECF No. 298 is AFFIRMED and ADOPTED. The parties objections ECF Nos. 302 and 303 are OVERRULED. Accordingly, it is ORDERED that Defendants Motion for Summary Judgment ECF No. [28 0] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that Plaintiffs state law claims are DISMISSED. It is also GRANTED since Plaintiffs claims against Lieutenant James Harding and Dr. Michael Hansa deceased, through his s urviving spouse and successor, Weera-Anong Hansa, are DISMISSED. It is FURTHER ORDERED that Defendants Motion for Summary Judgment ECF No. 280 is DENIED to the extent that Carol King and Michael Walsh request dismissal from the case based on qualified immunity, by Judge Wiley Y. Daniel on 3/20/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

12-cv-00624-WYD-CBS

WAYNE GLASSER,
Plaintiff,
v.
CAROLE KING, RN,
MICHAEL WALSH, PA,
LT. JAMES HARDING,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
I.

INTRODUCTION
THIS MATTER is before the Court on Defendants Carol King, RN, Michael Walsh,

PA, and Lieutenant James Harding’s (“Defendants”) Motion for Summary Judgment (ECF
No. 280), filed May 16, 2014. The motion was referred to Magistrate Judge Craig
Shaffer for a Recommendation by Order of Reference (ECF No. 282). Magistrate Judge
Shaffer issued a Recommendation (ECF No. 298) on January 14, 2015, that the above
referenced motion be granted in part and denied in part. Magistrate Judge Shaffer
recommended therein that the motion should be granted as to Plaintiff’s state law claims
and to any claims pertaining to Defendant Harding. Magistrate Judge Shaffer
recommended that the motion should be denied as to the qualified immunity claims of
Defendants King and Walsh. Magistrate Judge Shaffer further recommended that
Defendant Dr. Michael Hansa deceased, through his surviving spouse and successor,

Weera-Anong Hansa, be dismissed. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Magistrate Judge Shaffer advised the parties that they had fourteen (14) days to
serve and file written, specific objections to the Recommendation. On January 26, 2015,
the Court granted the parties’ motions (ECF Nos. 299 and 300) for an extension of time to
file objections, until February 27, 2015. Plaintiff Wayne Glasser, pro se,1 filed an
objection (ECF No. 302) on February 25, 2012, and Defendants filed an objection (ECF
No. 303) on February 27, 2015. This necessitates a de novo determination as to those
specified proposed findings or recommendations to which objection is made. See 28
U.S.C. § 636(b); Fed. R. Civ. P. 72(b). On March 17, 2015, the Court granted Plaintiff’s
motion (ECF No. 304) for an extension of time to file a response to Defendants’ objection,
until March 25, 2015. Plaintiff did not file a response on or before that date. For the
reasons stated below, Magistrate Judge Shaffer’s Recommendation is affirmed and
adopted.
II.

BACKGROUND
Plaintiff is a prisoner incarcerated at the Fremont Correctional Facility (“FCF”) in

Carson City, Colorado. Plaintiff asserts that Defendants failed to provide adequate
medical treatment for his serious medical condition on March 26, 2010 despite having
knowledge that he may have been experiencing a heart attack. The Recommendation
1

“A pro se litigant's pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991). However, it is improper for the Court to serve as an advocate for a pro se litigant. Id.

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contains a thorough summary of Plaintiff’s claims that I will not recite. See ECF No. 298,
pp. 2 - 6.
III.

OBJECTIONS
a.

Plaintiff’s Objection

Plaintiff argues in his objection that the Recommendation incorrectly interprets the
Colorado Government Immunity Act (“CGIA”) as it pertains to this case. Plaintiff initially
clarifies in his objection that he “has abandoned his state law tort claims that the actions of
Defendants King and Walsh were intentional, or that their conduct was outrageous.”
ECF No. 302, p. 2. He contends that “[h]is tort claims consist only of simple negligence
in their performance as medical professionals and negligent infliction of emotional
distress.” Id. Finally, Plaintiff clarifies that “he does not assert that their actions are
willful and wonton . . . .” Id. Plaintiff then asserts that the Recommendation slightly
misstates his argument, which he states is more accurately summarized as “(1) his claim
should go forward pursuant to the statutory waiver of immunity found in
Colo.Rev.Stat.Ann. § 24-10-118(2)(a), and (2) the waiver provisions of § 106(1) apply to
public entities as opposed to public employees.” ECF No. 302, p. 3.
However, the waiver of immunity referred to by Plaintiff in section 118(2)(a) that
relates to section 106(1) is inapplicable here since Plaintiff currently is and was
incarcerated resulting from a conviction. Pursuant to section 106(1.5), “[t]he waiver of
sovereign immunity created in . . . [section 106(1)(b)] does not apply to claimants who
have been convicted of a crime and incarcerated in a correctional facility or jail pursuant
to such conviction . . . .” C.R.S. § 24-10-106(1.5). Moreover, even though section
106(1.5) further states that “and such correctional facility or jail shall be immune from
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liability as set forth in” section 106(1), courts in this district have applied section 106(1.5)
to claimants who have been convicted and incarcerated regardless of the defendant’s
status as a public entity or public employee. See Garcia v. Chamjock, 11-cv-00263,
2012 WL 638145, at *3 (D. Colo. February 27, 2012); Montoya v. Newman, No.
12-cv-2362, 2013 WL 4882392, at *5 (D. Colo. Sept. 11, 2013); Whiteman v. El Paso
Criminal Justice Ctr., No. 10-cv-02430, 2011 WL 2610202, at *10 (D. Colo. July 1, 2011).
For these reasons and as set forth in the Recommendation, I agree that Defendants are
immune under section 118(2)(a).
Plaintiff next argues in three short paragraphs that he also objects to the
Recommendation on three grounds. First, Plaintiff takes issue with the Magistrate
Judge’s citation to section 108, entitled “sovereign immunity a bar,” and incorporates his
argument that sovereign immunity applies to entities and not employees. Second,
Plaintiff asserts that “only a violation of the notification requirements of §[]24-10-109
creates a jurisdictional bar to suit which cannot be waived[]” and that section 118(2)(a)
provides for immunity from liability and is not a bar to suit. ECF No. 302, p. 8.
Finally, Plaintiff contends that Defendants’ argument “for a certificate of review in order to
maintain the negligence claims, rather than arguing that the claims could not stand, even
with such a certificate, not only waived the defense of immunity, but equated to
misconduct on behalf of defendants and warrants sanctions of some type.” Id. Plaintiff
explains that Defendants’ vigorous argument that Plaintiff required a certificate of review
caused “him to expend a great deal of time, energy, and money to obtain the certificate.”
Id. I find Plaintiff’s arguments on these points unavailing. Defendants are entitled to
sovereign immunity as aforementioned and sanctions are not warranted.
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After carefully reviewing the record and relevant authority, I cannot conclude that
Magistrate Judge Shaffer erred in his application of the CGIA and determining that
summary judgment should be granted on Plaintiff’s state law claims. Based on my
careful de novo review as required by 28 U.S.C. § 636(b), I find that Magistrate Judge
Shaffer thoroughly analyzed Plaintiff’s state law claims and correctly applied the legal
standards applicable to the motion. Accordingly, I overrule Plaintiff’s objection finding
his arguments to be unavailing.
b.

Defendants’ Objection

In their objection, Defendants argue that the Recommendation incorrectly
analyzes Defendants’ qualified immunity argument as it relates to Plaintiff’s fourth claim
asserting Eighth Amendment violations against King and Walsh. In his
Recommendation, Magistrate Judge Shaffer set forth a detailed and comprehensive
analysis supporting his conclusion that genuine issues of material fact exist as to (1)
“whether Plaintiff’s symptoms as reported to . . . King should have alerted her to Plaintiff’s
serious medical need[;]” (2) “whether King had knowledge of Plaintiff’s serious medical
need once he arrived at the clinic[;]” and (3) “when Walsh was alerted to Plaintiff’s
condition, the extent of his delay in summoning the ambulance, and whether that delay
equates to deliberate indifference.” ECF No. 298, pp. 17-18, 21-22. He then
recommended that Defendant’s motion for summary judgment be denied in part on these
grounds.
Defendants contend that “the Recommendation relied on evidence suggesting a
mere disagreement in opinion regarding the type of medical treatment that was
administered, which is insufficient to show a constitutional violation.” ECF No. 303, p. 4.
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Defendants further contend that such a difference in opinion evidences negligence, which
is not actionable under 42 U.S.C. § 1983. Id. For these reasons, Defendants assert
that the Court should reject this portion of the Recommendation and enter summary
judgment in their favor.
Turning to my analysis, Defendants King and Walsh contend that they are entitled
to qualified immunity because the facts do not demonstrate that they acted with criminal
recklessness and that a showing of negligence is not actionable. “When a defendant
asserts a qualified immunity defense, the burden shifts to the plaintiff, who must first
establish that the defendant violated a constitutional right.” Cortez v. McCauley, 478
F.3d 1108, 1114 (10th Cir. 2007). “If no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries concerning
qualified immunity.” Id. “If, on the other hand, a violation has been shown, the plaintiff
must then show that the constitutional right was clearly established.” Id.
Plaintiff contends that King and Walsh violated the Eighth Amendment by
providing him inadequate medical treatment for a heart attack upon his return from the
FCF recreational yard on March 26, 2010. “[T]he Eighth Amendment’s ban on cruel and
unusual punishment . . . [is violated if] ‘deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain.’” Self v. Crum, 439
F.3d 1227, 1230 (10th Cir. 2006). The inadvertent failure to provide adequate medical
care or allegations of a physician’s negligence are not enough. Id. “[A] prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id.

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“Deliberate indifference has both an objective and subjective component.” Hunt
v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). Under the objective component, “the
alleged deprivation must be sufficiently serious to constitute a deprivation of constitutional
dimension.” Self, 439 F.3d at 1230. “The medical need must be sufficiently serious to
satisfy the objective component.” Hunt, 199 F.3d at 1224. “[A] medical need is
sufficiently serious ‘if it is one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Id.
Under the subjective component, “the prison official must have a sufficiently
culpable state of mind.” Self, 439 F.3d at 1231. “The subjective component is akin to
recklessness in the criminal law, where, to act recklessly, a person must consciously
disregard a substantial risk of serious harm.” Id. (internal quotation marks omitted). “As
long as the prison physician ‘provides a level of care consistent with the symptoms
presented by the inmate, absent evidence of actual knowledge or recklessness, the
requisite state of mind cannot be met.’” Heidtke v. Corr. Corp. of Am., 489 F. App'x 275,
280-81 (10th Cir. 2012). Moreover, “[a] difference of opinion between a physician and a
patient does not give rise to a constitutional right or sustain a claim under [42 U.S.C.] §
1983.” Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968).
Here, it appears that Defendants concede that Plaintiff’s heart attack was a
sufficiently serious medical need. See generally ECF No. 280, pp. 17-21. However, as
explained below, I find that there are genuine issues of material fact regarding the
subjective component of the Eighth Amendment analysis in relation to King and Walsh.

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1.

Nurse King

Plaintiff claims that King failed to perform her gatekeeper role by denying Plaintiff
access to proper medical care. When King was first informed by Sergeant Hansen of
Plaintiff’s symptoms during a telephone call, Hansen reported that Plaintiff was
experiencing tingling and heaviness in his arms, that he generally felt unwell, and that he
had pushed himself harder in the yard. King attributed these symptoms to over-exertion.
King reviewed Plaintiff’s medical records and found that his medical history presented no
red flags. Since Plaintiff’s condition did not appear to constitute an emergency, King
concluded that interrupting the facility count was not justified based on the symptoms
presented. King suggested that Plaintiff rest and take fluids. She also indicated that
Plaintiff should contact medical again if his condition had either not improved or worsened
and that Plaintiff could be seen after the count had cleared. When Hansen contacted
King again, Hansen informed her that Plaintiff’s condition had not worsened or improved.
Based on these facts, I agree with the Recommendation that there are genuine issues of
material fact as to whether the symptoms that were reported to King should have alerted
her of Plaintiff’s serious medical condition.
Plaintiff concedes that at the time of his arrival at the clinic, King took his chart, put
it on the counter, and relayed to the other clinic nurses that Plaintiff had a self-declared
medical emergency and needed to be seen. Plaintiff also concedes that King was acting
in the capacity of a gatekeeper. Plaintiff alleges, however, that King did not fulfill her role
as gatekeeper because she refused to immediately facilitate medical assistance.
Plaintiff asserts that after informing King that he thought he was having a heart attack, she
told him that they were busy and to go sit and wait. Plaintiff states that he then waited for
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20 minutes to be seen. While King admits that reports of chest pain constitute an
emergency, she asserts that when Plaintiff identified himself at the clinic he did not state
that he was experiencing chest pains or a heart attack. Based on these facts, I agree
with the Recommendation that there are genuine issues of material fact as to whether
King had knowledge of Plaintiff’s serious medical need once he arrived at the clinic.
2.

Physician’s Assistant Walsh

Plaintiff alleges that Walsh was deliberately indifferent when he delayed
dispatching an ambulance for 60 to 90 minutes despite evidence that Plaintiff was
suffering from a heart attack. Walsh states that approximately 20 to 30 minutes passed
during which the nursing staff performed an initial examination of Plaintiff, determined that
an EKG was necessary, administered the EKG and read the results, and located Walsh.
Walsh asserts that once he was informed that Plaintiff needed his attention, he concluded
within a few minutes after conducting his own initial examination that Plaintiff would
potentially need further treatment that was unavailable at the clinic. Walsh also asserts
that he immediately informed the corrections officer that Walsh needed to be sent out
emergently. Walsh then began to treat Plaintiff’s condition. Plaintiff concedes that
Walsh ordered an ambulance at some point, but contends that Walsh opted for a wait and
see approach. Plaintiff explains that after Walsh viewed the first EKG, Walsh waited to
perform a second one, administered Nitroglycerin, and then decided that he should call
an ambulance.
The ambulance arrived at 1:56 p.m. and the dispatch record indicates that the
ambulance was requested at 1:45 p.m. Plaintiff alleges that the ambulance ticket
demonstrates that one hour passed between when Walsh ordered the ambulance and
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when Walsh opined that Plaintiff was experiencing a heart attack after reading the first
EKG. Based on the facts before me, I agree with the Recommendation that there are
genuine issues of material fact as to when Walsh was alerted to Plaintiff’s condition, the
extent of his delay in summoning the ambulance, and whether that delay equates to
deliberate indifference.
After carefully reviewing the record and relevant authority, I cannot conclude that
Magistrate Judge Shaffer erred in determining that summary judgment should be denied
on Defendant’s qualified immunity arguments. Based on my careful de novo review as
required by 28 U.S.C. § 636(b), I find that Magistrate Judge Shaffer thoroughly analyzed
Defendants’ claims and correctly applied the legal standards applicable to the motion.
Accordingly, I overrule Defendants’ objection.
Finally, since the parties only objected to a portion of Magistrate Judge Shaffer’s
Recommendation, I review the balance of the Recommendation “under any standard [I]
deem[] appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that
Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). Nonetheless, though not required to do so, I review the Recommendation to
“satisfy [my]self that there is no clear error on the face of the record.”2 See Fed. R. Civ.
P. 72(b) Advisory Committee Notes. Having reviewed the Recommendation, I am
satisfied that there is no clear error on the face of the record. I find that it is thorough,
2 Note, this standard of review is something less than a "clearly erroneous or contrary to

law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R.
Civ. P. 72(b).

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well-reasoned, and sound. I agree with Magistrate Judge Shaffer’s conclusion that
Plaintiff’s claims against Defendants Harding and Hansa deceased, through his surviving
spouse and successor, Weera-Anong Hansa, should be dismissed.
IV.

CONCLUSION
For the reasons stated above, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF No.

298) is AFFIRMED and ADOPTED. The parties’ objections (ECF Nos. 302 and 303) are
OVERRULED. Accordingly, it is
ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 280) is
GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that
Plaintiff’s state law claims are DISMISSED. It is also GRANTED since Plaintiff’s claims
against Lieutenant James Harding and Dr. Michael Hansa deceased, through his
surviving spouse and successor, Weera-Anong Hansa, are DISMISSED. It is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
280) is DENIED to the extent that Carol King and Michael Walsh request dismissal from
the case based on qualified immunity.
Dated: March 30, 2015.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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