Bryan v. Hickenlooper et al

Filing 97

ORDER denying 80 Motion for Summary Judgment; granting 88 Motion for Summary Judgment by Judge R. Brooke Jackson on 9/21/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-01192-RBJ-MEH
DAVID GUY BRYAN,
Plaintiff,
v.
DAVE TESSIER, individual capacity, and
BRYAN HOFFMAN, official capacity,
Defendants.

ORDER

This case is before the Court on plaintiff’s motion for summary judgment [ECF No. 80]
and defendants’ cross-motion for summary judgment [ECF No. 88]. Plaintiff’s motion is denied.
Defendant’s defense of qualified immunity is granted, and final judgment will enter in favor of
the defendant as directed.
FACTS
The basic facts of this case were well summarized in Magistrate Judge Shaffer’s
recommendation of May 28, 2014. ECF No. 46. Judge Shaffer recommended that the Court grant
in part and deny in part the defendant’s motion to dismiss [ECF No. 28] and deny the plaintiff’s
motion for temporary restraining order [ECF No. 34]. I adopted and affirmed the
recommendation on July 9, 2014. ECF No. 51. The only cause of action remaining in Mr.
Bryan’s suit is his Eighth Amendment claim that the withholding of medical equipment (an egg
crate mattress) violated his right to be free from cruel and unusual punishment. ECF No. 51 at 8.

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The following facts have not been disputed except as otherwise noted.
Mr. David Guy Bryan, an inmate at the Colorado Territorial Correctional Facility (CTCF)
in Canon City, Colorado, brings this suit pro se pursuant to 42 U.S.C. § 1983. Mr. Bryan names
Mr. Dave Tessier and Mr. Bryan Hoffman as defendants. ECF No. 46 at 1-2. Mr. Tessier was
CTCF’s Health Services Administrator (HSA) from March 15, 2012 to May 15, 2013. ECF No.
88-13 at ¶ 4. Mr. Hoffman succeeded Mr. Tessier as HSA on June 1, 2013. ECF No. 88-14 at 6.
As successor, Mr. Hoffman is substituted for Mr. Tessier in the official capacity claim that
remains in this action. ECF No. 51 at 2; See Fed. R. Civ. P. 25(d). The HSA serves as an
administrator and is responsible for the supervision of clinical operations and staff. ECF No. 8813 at ¶ 6. The HSA does not provide medical care. Id.at ¶ 7.
Decubitus Ulcer
In 1971, Mr. Bryan was in a car accident. ECF No. 80 at 3. As a result, he has a fused
right hip, and his limited mobility renders him susceptible to decubitus ulcers on his coccyx
(tailbone) region. ECF No. 1 at 6; ECF No. 46 at 2. Before he was incarcerated, that area was
surgically repaired with a skin graft. ECF No. 71 at 4. A decubitus ulcer 1 is commonly known
as a “bedsore,” and it involves the breakdown of skin in a particular area. Depending on the
severity of the ulcer, the wound can take many months to heal. ECF No. 88-12 at ¶¶15-17.
Common treatments include the repositioning of patients in bed, regular skin inspection and
assessment, meticulous wound care, and the use of pressure-relief surfaces. Id. at ¶¶21-22.

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Different factors can cause decubitus ulcers, including friction between skin and bed sheets, moisture, limited
movement, decreased sensation, circulatory problems, poor nutrition, and age. Ulcers are classified by different
degrees of severity. Stage one ulcers present signs of a surface-level bedsore, stage two impacts some depth of the
skin layers, and stage three ulcers enter into the fatty tissue beneath the skin. NPUAP Pressure Ulcer
Stages/Categories, THE NAT’L PRESSURE ULCER ADVISORY PANEL (last visited Sept.18, 2015),
http://www.npuap.org/resources/educational-and-clinical-resources/npuap-pressure-ulcer-stagescategories/.

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Egg Crate Mattress
Pressure-relief surfaces include mattresses made of different materials or pads placed on
top of a mattress. Such mattress pads may be filled with water, air, gel, or foam. A foam egg
crate mattress is such a pressure-relief tool. It is the Court’s understanding that an egg crate
mattress has a pattern of elevations and depressions, similar to the pattern of an egg crate.
Mr. Bryan entered the custody of the Colorado Department of Corrections (CDOC) in
1993. ECF No. 46 at 9. Following his incarceration, he alleges that CDOC physicians McGarry,
Cabling, and Franz ordered or recommended his use of an egg crate mattress over a span of ten
years. Id. Mr. Bryan was also issued a wedge pillow (another pressure-relief tool) for his
bedsores. ECF No. 12 at 9; and see ECF No. 15 at 3.
Mr. Bryan was transferred to CTCF from Fort Lyon Correctional Facilities on April 28,
2011. ECF No. 1 at 17. After his transfer to CTCF, prison officials confiscated Mr. Bryan’s egg
crate mattress. ECF No. 12 at 9. On May 10, 2011, American with Disabilities Act (ADA)
Inmate Coordinator Julie Russel revised Mr. Bryan’s “accommodation list,” which includes a list
of permitted medical devices. ECF No. 46 at 2. Previously, this list had included “Egg-Crate
mattress, Wedge Pillow, Extra long bed and Desk in cell that is not attached to the wall.” Id.
After the revision, Mr. Bryan’s list of approved devices only contained “longer bed with
bedding” and “Accessible desk in cell.” ECF No. 31 at P 2.
Later in May 2011, despite the change in his accommodation list, Mr. Bryan was issued a
new egg crate mattress. ECF No. 31 at 2. In early 2013, prison officials confiscated this
mattress. ECF No. 88-14 at 4. Mr. Bryan was not reissued an egg crate mattress during the
remainder of Mr. Tessier’s tenure as HSA. ECF No. 46 at 9. Mr. Byran was reissued a mattress

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on July 17, 2013 when a wound developed on his ankle. ECF No. 89-1 at 4. He maintained this
mattress until January 3, 2014. Id.
There is a CDOC-wide policy regarding the use of egg crate mattresses. ECF No. 88-14
at 5. This policy permits the use of an egg crate mattress when a medical provider determines
that it is medically necessary. Id. However, the policy limits the use of an egg crate mattress to
use in the infirmary. Id The policy states:
Medical supplies, such as egg crate mattresses, are limited for use by offenders who are
confined to an infirmary or special medical unit and who meet clinically appropriate
standards. Egg crate mattresses are not to be used by offenders in general population or
administrative/punitive segregation, unless noted on the accommodation resolution form.
Id. Prison officials justify this policy on safety and security grounds. ECF No. 88-13 at ¶ 20.
“Egg crate mattresses are not permitted in the general population areas of facilities because they
present a great risk of fire hazard and because it may be a place for offenders to hide
contraband.” Id.
Treatment of the Decubitus Ulcer during Mr. Tessier’s Tenure
On September 8, 2012, Mr. Bryan reported a skin breakdown on his coccyx. ECF No.
88-1 at 1. Mr. Bryan visited the infirmary was on September 11, 2012. Id. Clinician Savannah
Martinez attended to Mr. Bryan, and she wrote:
Explained to [patient] that we no longer recommend egg crate cushions as they can trap
moisture and cause pressure ulcers. Recommended an overlay mattress or some type of
off-loading mattress to help resolve wound. Expressed to [patient] that he must continue
to off-load pressure from coccyx by turning frequently or propping up hip with wedge or
pillow. ECF No. 43-3 at 18.
Bryan then requested a replacement egg crate mattress, but he did not receive one. ECF No. 311 at 11-12; ECF No. 88 at ¶ 145.
CTCF medical staff frequently examined and treated Mr. Bryan following his initial
medical examination for his bedsore. During Mr. Tessier’s tenure as HSA, the CTCF clinic

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treated Mr. Bryan’s ulcer approximately 130 times. ECF No. 88 at ¶147. On average, these
visits occurred every 24 to 48 hours. During most visits, medical staff cleaned the wound and
replaced the dressing. See, e.g., ECF No. 88-1 at 1-29. In addition to ongoing treatment from
the CTCF clinic, Mr. Bryan visited the St. Mary Corwin Wound Care Clinic (SMCWCC) in
Pueblo, CO twice in 2013. ECF No. 88-14 at 2; see also ECF No. 89-1. CTCF medical staff
recommended these visits. ECF No. 89-1 at 5.
Medical providers disagreed about the utility of an egg crate mattress as a component of
Mr. Bryan’s care. In 2013, Dr. Mark Wienpahl recommended use of “either an egg-crate
mattress or some type of off-loading mattress.” ECF No. 46 at 9. On his first visit to SMCWCC
on January 4, 2013, Mr. Bryan alleges that the nurse who examined him recommended use of an
“egg create mattress or a air actuated mattress.” ECF No. 1 at 6. On January 28, 2013, Mr.
Bryan requested a new egg crate mattress, but he did not receive one. ECF No. 88 at ¶75.
On his second visit to SMCWCC on March 27, 2013, Mr. Bryan saw a different medical
provider who noted that his ulcer had improved since January 2013. ECF No. 43-3 at 18. The
provider specifically recommended against the use of an egg crate mattress. Id. The provider’s
concern was that an egg crate mattress might trap moisture, and increased moisture could lead to
a deterioration of the wound. Id.
When Mr. Tessier departed CTFC, the medical records show that Mr. Bryan’s ulcer was
not fully healed. ECF No. 88-6. However, the records show that Mr. Bryan’s bed sore had
improved from stage three on October 4, 2012 [ECF No. 88 at ¶11] to stage two on November
15, 2012 [Id. at ¶35] to stage one on May 17, 2013. Id. at ¶135.

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Treatment of the Decubitus Ulcer after Mr. Tessier’s Tenure
On July 17, 2013, Dr. Cynthia Ireland examined Mr. Bryan in the CTFC infirmary for a
new ulcer that had developed on his ankle. ECF No. 88-7 at 11. Her assessment read “if we can
get [the egg crate mattress] replaced, I think we can avoid worsening the current ulcer(s), and
avoid the need for an air mattress.” Id. Following that visit, Mr. Bryan did receive a full-length
egg crate mattress, which he retained until January of 2014 when the ankle wound had largely
resolved. ECF No. 88 at ¶151.
On June 11, 2014, Dr. Weinpahl noted that Mr. Bryan’s condition “warrants a sleeping
mattress that in some way reduces pressure more efficiently than the standard issue here. Either
the eggcrate, or air mattress of some sort, or something.” ECF No. 88-11 at 3. The CTCF’s
Chief Medical Officer (CMO), Dr. Andrew Martinez, examined Mr. Bryan and recommended
that he be provided a pad to help with repositioning himself in bed. ECF No. 88 at ¶153. Mr.
Bryan did receive such a pad on September 10, 2014, which measures 16-by-18 inches. Id. at
¶154. Mr. Bryan still retains that pad. Id. at ¶155.
On September 10, 2014, a CTCF provider recorded that Mr. Bryan’s coccyx no longer
had an “open area” although the skin remained “red and tough.” ECF No. 88-10 at 14. On
October 9, 2014 Dr. Martinez visited Mr. Bryan in his cell to examine this pad (sometimes
referred to as a “short pad”) and to “make an assessment” of Mr. Bryan’s need for “a special
mattress.” ECF No. 71 at 11. Dr. Martinez personally observed that “there was no skin break
down.” Id. He determined that the short pad was sufficient. Id. Mr. Bryan continued to be seen
in the CTCF clinic regularly for care on his decubitus ulcer through the end of 2014. ECF No.
88-11.

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STANDARD OF REVIEW
The Court may grant summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party has the burden to show that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving
party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A
fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (internal quotations and
citations omitted). A material fact is genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Mr. Tessier asserts that he is entitled to qualified immunity because Mr. Bryan has sued
him only in his individual capacity. ECF No. 88 at 26. The qualified immunity doctrine “shields
government officials performing discretionary functions from liability for damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Toevs v. Reid, 646 F.3d 752, 755 (10th Cir. 2011)
(internal quotations and citations omitted). When the defense asserts a qualified immunity
defense, the summary judgment standard is subject to a “somewhat different analysis from other
summary judgment rulings.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006).
By asserting the defense of qualified immunity, Mr. Tessier “triggered a well-settled two
fold burden” that Mr. Bryan is “compelled to shoulder.” Cox v. Glanz, No. 14-5022, 2015 WL
5210607 at 10 (10th Cir. Sept. 8, 2015). If a defendant raises qualified immunity, the burden
shifts to the plaintiff. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (internal quotations

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and citations omitted). To overcome summary judgment based on qualified immunity, the
plaintiff must satisfy a “heavy two-part burden.” Id. The plaintiff “must show that the
defendant’s actions violated a specific statutory or constitutional right” and that the right was
“clearly established at the time of the conduct at issue.” Steffey, 461 F.3d at 1221. If a plaintiff
does succeed in carrying is burden, the defendants then bear the burden of showing that there are
no material issues of fact that would defeat their claim of qualified immunity. Lighton v.
University of Utah, 209 F.3d 1213, 1221 (10th Cir. 2000).
When a case involves a pro se party, courts will “review his pleadings and other papers
liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v.
U.S. Government, 472 F.3d 1242, 1243 (10th Cir. 2007). However, “it is not the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A broad reading of a pro se plaintiff’s pleadings “does not
relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim
could be based…conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Id. Pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(internal quotations and citations omitted).
CONCLUSIONS
I.

Mr. Tessier’s Qualified Immunity Defense
Prisoners, because of their confinement, cannot provide for their own medical care.

“[T]he treatment a prisoner receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832
(1994). The Supreme Court has held that the Eighth Amendment prohibits “unnecessary and

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wanton infliction of pain,” including “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A. Constitutional Violation
The first prong of Mr. Bryan's burden in overcoming the qualified immunity defense
requires the Court to determine whether the plaintiff “sufficiently asserted the violation of a
constitutional right.” Lighton, 209 F.3d at 1221. The plaintiff “must do more than abstractly
identify an established right, but must specifically identify the right and conduct . . . which
violated that right.” Steffey, 461 F.3d at 1221. In effect, Mr. Bryan must first show enough
evidence that could lead a reasonable jury to find that Mr. Tessier acted with deliberate
indifference to Mr. Bryan’s serious medical needs.
The test for deliberate indifference requires the satisfaction of both an objective and
subjective component. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotations and
citations omitted). The objective component requires that the prisoner “produce objective
evidence that the deprivation at issue was in fact ‘sufficiently serious.’” Id. 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. The subjective component is satisfied when a prison official has a culpable mind,
meaning that the official “knows of and disregards an excessive risk to inmate health or safety.”
Id. The Tenth Circuit has emphasized that “the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference. Deliberate indifference requires more than mere negligence.” Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
The subjective component is “akin to recklessness in the criminal law, where, to act

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recklessly, a person must consciously disregard a substantial risk of serious harm.” Self v. Crum,
439 F.3d 1227, 1231 (10th Cir. 2006) (internal citations and quotations omitted). Deliberate
indifference is characterized by “obduracy and wantonness.” Whitley v. Albers, 475 U.S. 312,
319 (1986). A prison official acts with deliberate indifference “only if he knows that inmates
face substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer, 511 U.S. at 847. However, “an inadvertent failure to provide
medical care does not rise to a constitutional violation.” Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009) (internal quotations and citations omitted).
1. Objective Component
In order to satisfy the objective component, Mr. Bryan must allege 2 sufficient facts that
the deprivation in question (the removal of and refusal to replace his egg crate mattress) caused
him substantial harm. The Tenth Circuit has defined substantial harm as “lifelong handicap,
permanent loss, or considerable pain.” Oxendine v. Kaplan, 241 F.3d 1272, 1278 (10th Cir.
2001). The objective standard does not require proof of a permanent injury or a showing that the
defendant caused the harm directly; it is sufficient to provide evidence that the medical need was
serious or the delay or deprivation “unnecessarily prolonged appellant's pain and suffering.”
Sealock, 218 F.3d at 1210 n. 5. However, “not every twinge of pain suffered as the result of
delay in medical care is actionable.” Id. at 1210. The Tenth Circuit has held that “twelve hours
of tormenting, debilitating pain accompanied by severe vomiting,” and “considerable pain
[experienced] while [a] finger continued to rot” constituted substantial harm. Oxendine, 241
F.3d at 1278 (internal quotations and citations omitted). Furthermore, “severe chest pain, a
2

The Court is mindful that Mr. Bryan improperly attached sixty pages of exhibits to his Response to Motion to
Dismiss. The Court only considers the allegations contained in Mr. Bryan’s Amended Complaint, Response to
Motion to Dismiss, Motion for Temporary Restraining Order, and Reply in support of Motion for Temporary
Restraining Order, and the exhibits attached to the Defendant’s Response to Motion for Temporary Restraining
Order. ECF No. 56 at 8.

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symptom consistent with a heart attack, is a serious medical condition under the objective
prong.” Mata v. Saiz, 427 F.3d 745, 754 (10th Cir. 2005).
Mr. Bryan claims that Mr. Tessier's denial of a new egg crate mattress resulted in “an
open, painful and debilitating decubitus.” ECF No. 12 at 9. It is undisputed that the onset of
Mr. Bryan’s decubitus ulcer coincided with his possession of an egg crate mattress in September
2012. However, Mr. Bryan alleges that he did not have a problem with ulcers until his egg crate
“wore out” in fall 2011. ECF No. 89-1 at 3. That mattress had been issued in May 2011. ECF
No. 31 at 2
In any § 1983 claim, causation is also a necessary element. Daniels v. Gilbreath, 668
F.2d 477, 488-89 (10th Cir.1982). A delay in medical care “only constitutes an Eighth
Amendment violation where the plaintiff can show that the delay resulted in substantial harm.”
Oxendine, 241 F.3d at 1276 (emphasis added). The requirement of causation is not just “factual
cause” but rather “legal causation which goes to the relationship to the injury and consequent
liability.” Daniels, 668 F.2d at 480-81 (internal quotations and citations omitted).
A worn out mattress could contribute to the development of a bedsore if the mattress was
dilapidated enough to no longer relieve pressure on susceptible areas of Mr. Bryan's body.
However, Mr. Bryan's claim that the mattress was “wore out” is largely undeveloped. Beyond
his allegations in his deposition [ECF No. 89-1 at 3], Mr. Bryan does not present any evidence
about how long an average mattress is expected to last. He does not provide any specific details
about the condition of his mattress in September 2012 when the ulcer developed. Therefore, in
the absence of additional evidence, a reasonable jury could not find that old mattress caused Mr.
Bryan's initial skin breakdown.
Furthermore, Mr. Bryan alleges that the removal of his old mattress in January 2013 and

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Mr. Tessier's refusal to grant him a new mattress caused him substantial harm. Mr. Bryan
repeatedly requests a new egg crate mattress, but he does not offer specific examples of how the
absence of the mattress caused him additional substantial harm. He alleges that he had never had
a skin breakdown before September 2012. ECF No. 89-1 at 3. Mr. Bryan also claims that when
he entered prison, he was “issued an egg-crate mattress by Medical Department/CDOC, and the
decubitus healed in a very short time which demonstrates that using such an item will/or could
resolve the healing process and can be used as a proactive/preventative item.” ECF No. 80 at ¶2.
However, the medical records indicate that Mr. Bryan's bedsore was healing, albeit
slowly, throughout the time when he did not possess an egg crate mattress. On January 10, 2013,
Mr. Bryan indicated to Nurse Jones that there was “improvement” to his wound. ECF 88 at ¶63.
On January 17, 2013, Nurse Rudnick changed Bryan’s dressing and recorded “[w]ound is
beginning to close at the top…” Id. at ¶67. On February 8, 2013, Nurse Bufmack changed
Bryan’s dressing and recorded that the wound “is slowly resolving [and has] no signs of
infection.” Id. at ¶85. On March 19, 2013, Nurse Havens recorded, “[t]he wound bed is healing,
no signs and symptoms of infection.” Id. At ¶109. On March 27, 2013, the provider at
SMCWCC noted that Mr. Bryan's ulcer had improved since the first visit in January. Id. at ¶111.
On April 13, 2013 Nurse Gritz noted that the wound was stable and free of complications. Id. at
¶123. On May 17, 2013, two days after Mr. Tessier’s departure, Nurse Rogers recorded that
although the ulcer was “chronic,” it had now resolved to “stage 1.” Id. at ¶135. On May 22,
2013, Nurse Pearl recorded that Mr. Bryan told her he believed “it’s getting better.” Id. at ¶138.
This improvement in the absence of an egg crate mattress demonstrates that the medical need for
one was not sufficiently serious.
Additionally, Mr. Bryan did receive an egg crate mattress in July 2013 for a different

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ulcer. ECF No. 88-7 at 11. This occurred after Mr. Tessier’s tenure, so it is not directly relevant
to the claim here. However, a review of the medical records from when Mr. Bryan had this
mattress assists the Court in determining whether an egg crate mattress would have helped
accelerate the healing of Mr. Bryan’s bedsore on his coccyx. The medical records do show that
both the ulcer on the heel and the ulcer on the coccyx were generally improving during this time.
However, the Court did not find any indication that the coccyx ulcer was healing more rapidly
than it was before the issuance of the mattress in July 2013. See ECF No. 88-7; ECF No. 88-8;
ECF No. 88-9.
A plaintiff must “go beyond the pleadings and designate specific facts so as to make a
showing sufficient to establish the existence of an element essential to that party’s case in order
to survive summary judgment.” Sealock, 218 F.3d at 1209. Even when liberally construing Mr.
Bryan's pleadings, the record does not contain enough evidence that could permit a reasonable
jury to find that the confiscation of the mattress rises to the level of a constitutional violation.
The absence of a mattress does not appear to have conclusively prolonged Mr. Bryan’s recovery
or caused him additional severe pain. The Court finds that Mr. Bryan has not presented
sufficient evidence to satisfy the objective prong of the deliberate indifference test. While
acknowledging the pain and discomfort of a chronic decubitus ulcer, Mr. Bryan’s evidence does
not suggest that pain he experienced as a result of not having an egg crate mattress was of
sufficient severity to be substantial.
2. Subjective Component
Even if the deprivation of the egg crate mattress was sufficiently serious under the
objective prong of the deliberate indifference test, Mr. Bryan would still need to satisfy the
subjective prong. The subjective component “presents a high evidentiary hurdle to the plaintiffs:

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a prison official must know about and disregard a substantial risk of serious harm. . . . A claim is
therefore actionable only in cases where the need for additional treatment or referral to a medical
specialist is obvious.” Self, 439 F.3d at 1232. Here, Mr. Bryan would need to present evidence
that could lead a reasonable jury to decide that Mr. Tessier had the requisite culpable mind.
In 2012, Mr. Bryan submitted two requests for a new egg crate mattress. The first was on
September 15, 2012 when he requested a “new egg crate mattress as the one I have currently is
wore out.” ECF No. 31 at ¶12. He submitted a second request on September 28, 2012. Id. On
September 28, 2012, Nurse Debbie Petroeske responded by writing on his second request:
“Action Taken: Order - will take about 2 wks.” Id. Mr. Bryan states that Nurse Petroeske later
informed him “that she was told by Tessier to cancel the order for Egg-Crate Mattress.” ECF
No.31 at ¶12. Mr. Bryan asserts that “this is when Tessier wantonly and deliberately stopped the
order.” Id. Mr. Bryan claims that Tessier personally told him that “I will see to it that that [sic]
your ADA accommodation will have the items removed and that you will not be issued these
items.” Id. at ¶16.
However, while the health records conclusively show that Mr. Bryan made multiple
requests for an egg crate mattress, Mr. Bryan does not offer any additional evidence of Mr.
Tessier denying such a request. Nothing in the record, beyond Mr. Bryan’s undeveloped
assertions in his Response to Motion to Dismiss [ECF No. 31], confirms that Mr. Tessier
cancelled the orders for Mr. Bryan's mattress or affirmatively prohibited any other type of
pressure-relieving tool. Furthermore, Mr. Tessier stated in his deposition that “Mr. Bryan
wanted an egg crate mattress. However, at that time, Bryan did not have any clinical medical
order for such a device to be re-issued.” ECF No.88-13 at ¶11. Based on the Court’s review of
the record, it seems that the prison’s decision to take away the mattress (and not give it back)

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was not based on any medical recommendation but was due to a change in prison policy.
As Judge Shaffer writes in his recommendation, it is troubling that Mr. Bryan did not
receive an egg crate mattress or, at minimum, an alternative mattress during Mr. Tessier’s tenure.
ECF No. 46 at 11. However, Mr. Hoffman stated in his deposition that “the determination
regarding whether [the egg crate mattress] is medically appropriate for [Plaintiff], would be
made by a medical clinician and approved by the [Chief Medical Officer.]” ECF. No. 43-3 at 4.
The Court does not dispute that many medical staff recommended an egg crate or a substitute.
ECF No. 46 at 11. However, it is not clear from the Court’s review of the record that a provider
actually issued a medical order for Mr. Bryant to receive an egg crate mattress (or a replacement)
or if the providers were making mere recommendations for the CMO to review.
Furthermore, the Court finds it appropriate that, as non-medical supervisors, Mr. Tessier
and Mr. Hoffman consulted with Dr. Martinez and relied on his opinion. Mr. Tessier stated that
when answering Mr. Bryan’s grievance, “I consulted with the Chief Medical Officer. I provided
feedback to Mr. Bryan’s provider(s) regarding what policy permitted and what other options they
might pursue in consultation with the CMO.” ECF No. 88-13 at ¶24. Absent additional
evidence from Mr. Bryan, the non-issuance of an egg crate mattress or another replacement
appears to be negligent at worst.
Ultimately, deliberate indifference is a high standard. There is a difference “between
inadvertent failure to provide medical care and a deliberate indifference to serious medical needs.
It is only the latter that can be said to form the basis for an action [that rises to a constitutional
claim].” Daniels, 668 F.2d at 482. Although the Court sympathizes with Mr. Bryan, and
although Mr. Tessier may have been negligent in not issuing an alternative mattress, Mr. Bryan’s

15

evidence does not establish conduct by Mr. Tessier that rises to the level of wanton or reckless
disregard for his health.
B. Clearly Established Law
As Mr. Bryan has not provided sufficient evidence to lead a reasonable jury to decide that
Mr. Tessier violated his Eighth Amendment rights, the Court need not decide whether those
rights were clearly established in law at the time of the conduct. However, in the interest of
completeness, the Court will briefly address the second prong of the qualified immunity analysis.
A right is clearly established if it would have been “clear to a reasonable officer that his
conduct was unlawful under the circumstances presented.” Herrera v. City of Albuquerque, 589
F.3d 1064, 1070 (10th Cir. 2009). In general, a rule is “clearly established” if there is a Supreme
Court or Tenth Circuit decision on point, or if the clear weight of the authority from other courts
has shown the law to be established. Casey v. City of Federal Heights, 509 F.3d 1278, 1284
(10th Cir. 2007). The Tenth Circuit has previously held that “there is little doubt that deliberate
indifference to an inmate's serious medical need is a clearly established constitutional right.”
Mata, 427 F.3d at 749.
However, the plaintiff must satisfy both prongs of his burden to defeat a defense of
qualified immunity. For the reasons stated above, Mr. Bryan has failed to offer sufficient
evidence that shows that Mr. Tessier acted in deliberate indifference to a serious medical need.
Mr. Bryan has not carried his burden, and Mr. Tessier's qualified immunity defense stands.
II.

Defendants’ Motion for Summary Judgment
In addition to the assertion of qualified immunity, the defendants' motion focuses on the

subjective component of the deliberate indifference test. The defendants contend that Mr. Bryan
cannot satisfy the subjective prong merely because he disagrees with the course of the medical

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treatment provided, and neither defendant denied Mr. Bryan access to medical care. ECF No. 88
at 21–25. The defendants' legal arguments are not entirely persuasive. The central issue in the
present case does not involve a disagreement between the plaintiff and his doctors. Rather, Mr.
Bryan alleges that the prison officials, working in a supervisory administrative capacity,
prevented him from receiving an egg crate mattress. He disagrees with the actions and policies
of the defendants in the HSA role.
Additionally, the defendants focus on the amount of care that Mr. Bryan did receive for
his bedsore. The defendants' motion dedicates substantial space to arguing that Mr. Bryan
received ample care for his ulcer. The defendants rely on case law that establishes that a nonmedical official “who serves solely as a gatekeeper for other medical personnel capable of
treating the condition may be held liable under the deliberate indifference standard if she delays
or refuses to fulfill that gatekeeper role.” Mata, 427 F.3d at 751. The defendants argue that Mr.
Tessier fully satisfied his “gatekeeping role” as the “‘gate’ kept by Tessier and Hoffman was
wide open.” ECF No. 88 at 24.
The Court does not dispute the frequency or quality of the treatments given. However,
Mr. Bryan’s claim is that he was unconstitutionally denied access to an egg crate mattress, not
that he was unconstitutionally denied access to any medical care. Despite the weaknesses in the
defendants' legal arguments, Mr. Bryan did not carry his burden in challenging Mr. Tessier's
qualified immunity defense.
III.

Plaintiff’s Motion for Summary Judgment
As discussed above, Mr. Bryan has not offered sufficient evidence to find that there is not

a dispute of material fact about either prong of the deliberate indifference test. The Court
acknowledges that it is understandably frustrating to Mr. Bryan that he was not issued a medical

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device that he believed would improve his persistent condition. The Court recognizes that Mr.
Bryan’s chronic bedsore must have been a very uncomfortable experience. However, the Court
finds that Mr. Bryan as not produced sufficient evidence to overcome Mr. Tessier's defense of
qualified immunity.
IV.

Prospective Relief
As noted in this Court’s previous order granting in part and denying in part defendants’

earlier motion to dismiss, Mr. Bryan only brought a claim against Mr. Hoffman in his official
capacity. ECF No. 51 at 9. Therefore, the plaintiff’s claim against Mr. Hoffman is limited to
prospective relief. Id. A plaintiff may present past injuries when establishing standing for
retrospective relief, but “he must demonstrate a continuing injury to establish standing for
prospective relief.” PETA v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir.2002). “Where a
plaintiff seeks an injunction, his susceptibility to continuing injury is of particular importance—
past exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief if unaccompanied by any continuing, present adverse effects.” Jordan v. Sosa,
654 F.3d 1012, 1024 (10th Cir. 2011) (emphasis in original) (internal citation, quotations, and
alterations omitted). Furthermore, “a plaintiff’s continued susceptibility to injury must be
reasonably certain; a court will not entertain a claim for injunctive relief where the allegations
take it into the area of speculation and conjecture.” Id. at 1024–25.
Defendants argue that Mr. Bryan’s claim for injunctive relief is moot because Mr. Bryan
presently possesses the short pad and his “decubitus has essentially closed.” ECF No. 88 at 28.
Furthermore, defendants attest that Mr. Bryan’s six-month trial of using a full-length egg crate in
2014 was “unsuccessful” because the coccyx bedsore did not heal during his possession of the
mattress. Id.

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While Mr. Bryan’s ulcer has been very slow to heal, the most current medical records
show that the bedsore is nearly resolved. Dr. Weinpahl examined Mr. Bryan on December 2,
2014, which was the last examination on record. Dr. Weinpahl's notes state that the ulcer has
stabilized and that it is unlikely to fully heal without surgery. ECF No. 88-11 at 2. Dr. Weinpahl
writes that the ulcer has been “present over two yrs, albeit indolently” and that “it [the ulcer]
does not seem to be bothering him, and is not likely too risky for infection.” Id. Dr. Weinpahl
also records that the ulcer “appears static, not likely to close unless we do something to stir 3 it
up.” Id. Therefore, the status of Mr. Bryan’s wound does not warrant prospective relief because
it does not demonstrate a significant risk of continuing injury.
Additionally, as discussed above, the record is inconclusive as to whether the egg crate
mattress is necessary in preventing or treating bedsores. The record indicates that Mr. Byran's
coccyx ulcer first developed in September 2012 when he was in possession of an egg crate
mattress (albeit one that was over one-year-old), that the ulcer was slowly healing during the
time he was without such a mattress, and the six months when he had a mattress did not seem to
rapidly accelerate the healing of the coccyx ulcer.
The standard for prospective relief requires a level of certainty that the relief sought will
prevent continuing injury. Here, the relief sought is the provision of a full-length egg crate
mattress. Without engaging in speculation, this Court cannot conclude that Mr. Bryan is any
more susceptible to continuing injury without an egg crate mattress than in possession of one.

3

To stir up a bedsore often means to remove damaged, dead, or infected tissue by debridement, which involves
cutting away dead tissue. Diseases and Conditions: Bedsores (pressure sores), MAYO CLINIC (last visited Sept. 10,
2015), http://www.mayoclinic.org/diseases-conditions/bedsores/basics/treatment/con-20030848. Dr. Weinpahl’s
notes reflect that he was going to call the skin care surgeons about such debridement. ECF No. 88-11 at 2.

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III. ORDER
Plaintiff’s motion for summary judgment [ECF No. 80] is DENIED. Defendants’ motion
for summary judgment [ECF No. 88] is GRANTED on the qualified immunity defense and the
prospective relief claim. Judgment will enter in favor of the defendants, Mr. Dave Tessier in his
individual capacity and Bryan Hoffman in his official capacity. Judgment will enter against the
plaintiff, Mr. David Guy Brian.

DATED this 21st day of September, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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