Peterson v. Archuletta et al

Filing 54

ORDER approving and adopting 47 Report and Recommendations; granting 22 Motion to Dismiss or Alternatively Motion for Summary Judgment. by Judge Robert E. Blackburn on 3/14/16.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-01916-NYW
BRUCE EDWARD PETERSON,
Plaintiff,
v.
DR. TIMOTHY CREANY,
DR. BEDDY,
DR. DAVID TESSIER,
RICK MEICER, R.N.,
FNU WEINHIMER, and
WARDEN LOU ARCHULETTA,
Defendants.

ORDER OVERRULING OBJECTIONS AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Motion To Dismiss or Alternatively Motion
for Summary Judgment [#22]1 filed March 16, 2015; and (2) the related
Recommendation of United States Magistrate Judge [#47], filed November 12,
2015. The plaintiff filed objections [#53] to the recommendation. I overrule the
objections and approve and adopt the recommendation. As recommended by the
magistrate judge, I convert a portion of the motion to dismiss to a motion for summary
judgment. Ultimately, I grant the motion to dismiss and motion for summary judgment.

1

“[#22]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

The plaintiff is proceeding pro se. Thus, I have construed his pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which the plaintiff objects. I have considered carefully the
recommendation, objections, and applicable case law, as well as the arguments raised,
authorities cited, and evidence presented by the parties.
The plaintiff, Bruce Peterson, describes in his Amended Prisoner Complaint
[#6], filed August 14, 2014, various medical issues he faces and treatments he has
received. He claims the defendants have, in various ways, violated his Eighth
Amendment right against cruel and unusual punishment by being deliberately indifferent
to the need of Mr. Peterson for proper medical care. As to defendants, Lou Archuletta,
Dr. David Tessier, Dr. Timothy P. Creany, and Dr. Beddy2, the magistrate judge
concludes that the allegations in the complaint [#6] are not sufficient to state an Eighth
Amendment claim against these defendants. On this basis, the magistrate judge
recommends that the motion to dismiss be granted as to these defendants.
On the other hand, the magistrate judge concludes that the allegations of Mr.
Peterson are sufficient to state an Eighth Amendment claim as to defendants, FNU
Wienhimer3 and Rick Meicer. The magistrate judge concludes also that defendants

2

Apparently, the correct spelling of this last name is Beatte. See Recommendation [#47], p. 14.

3

Apparently, the correct spelling of this last name is Wienpahl. See Recommendation [#47], p.

16.

2

FNU Wienhimer and Rick Meicer, are not entitled to qualified immunity because the
scope of right of a prison inmate not to be subjected to deliberate indifference to a
serious medical need was clearly established before the events described in the
complaint involving these defendants. As noted in the next paragraph, however, the
Eighth Amendment claims against FNU Wienhimer and Rick Meicer must be dismissed
because Mr. Peterson failed to exhaust his administrative remedies as to this claim
against these defendants.
Defendants Dr. David Tessier, FNU Wienhimer, Lou Archuletta, and Rick Meicer
contend also that Mr. Peterson failed to exhaust his administrative remedies before
filing this case. Prison inmates are required to exhaust administrative remedies before
filing a lawsuit concerning prison life. Booth v. Churner, 532 U.S. 731, 741 (2001).
On this issue, the magistrate judge properly notified Mr. Peterson that the court would
consider converting the motion to dismiss to a motion for summary judgment. The
magistrate judge solicited additional briefing from the plaintiff on this issue and the
plaintiff submitted a response [#41]. The magistrate judge concluded that Mr. Peterson
did not identify defendants, Dr. David Tessier, FNU Wienhimer, Lou Archuletta, and
Rick Meicer in his grievances concerning the issues that are the bases of his complaint
in this case. On this basis, the magistrate judge recommends that the motion to
dismiss, converted to a motion for summary judgment on the issue of exhaustion of
administrative remedies, be granted as to defendants, Dr. David Tessier, FNU
Wienhimer, Lou Archuletta, and Rick Meicer.
Mr. Peterson has identified the defendant named as John Doe as Dr. Miller,
though the plaintiff has not moved to amend the caption to name Dr. Miller. As to Dr.
Miller and the still unidentified defendant named as Jane Doe, the magistrate judge
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concludes that the allegations in the complaint do not support a claim of deliberate
indifference to a serious medical need. The magistrate judge recommends that the
motion to dismiss be granted as to the John Doe and Jane Doe defendants.
Finally, the magistrate judge concludes that Mr. Peterson has not alleged facts
sufficient to support a claim for violation of Title II of the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. §§ 12102 - 12213 (ADA). This is true even though Mr.
Peterson had the opportunity to amend his complaint. Thus, the magistrate judge
recommends that the motion to dismiss be granted as to the ADA claims.
In his objections[#53], Mr. Peterson does not assert any valid challenge to the
analysis, conclusions, and recommendations of the magistrate judge. The analysis of
the magistrate judge is thorough, complete, and correct. Therefore, after de novo
review I overrule the objections and approve and adopt the recommendation.
THEREFORE, IT IS ORDERED as follows:
1. That the objections [#53] of the plaintiff are overruled;
2. That the Recommendation of United States Magistrate Judge [#47], filed
November 12, 2015, is approved and adopted as an order of this court;
3. That under Fed. R. Civ. P. 12(b)(6), the Motion To Dismiss or Alternatively
Motion for Summary Judgment [#22], is granted without prejudice as to the claims
against the defendants named in the complaint [#6] as Dr. David Tessier, Lou
Archuletta, Dr. Timothy P. Creany, Dr. Beddy, John Doe, and Jane Doe;
4. That under Fed. R. Civ. P. 12(d), the Motion To Dismiss or Alternatively
Motion for Summary Judgment [#22] is converted to a motion for summary judgment
on the issue of exhaustion of administrative remedies;

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5. That under Fed. R. Civ. P. 56, the Motion To Dismiss or Alternatively
Motion for Summary Judgment [#22] is granted as to the defendants named in the
complaint [#6] as Dr. David Tessier, FNU Wienhimer, Lou Archuletta, and Rick Meicer;
6. That judgment shall enter in favor of the defendants named in the complaint
[#6] as Dr. Timothy P. Creany, Dr. Beddy, John Doe, and Jane Doe, dismissing the
claims against them without prejudice;
7. That judgment shall enter in favor of the defendants named in the complaint
[#6] as Dr. David Tessier, FNU Wienhimer, Lou Archuletta, and Rick Meicer dismissing
the claims against them with prejudice;
7. That defendants, Dr. David Tessier, FNU Wienhimer, Lou Archuletta, and
Rick Meicer, are awarded their costs to be taxed by the clerk of the court in the time and
manner prescribed in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and
8. That this case is closed.
Dated March 14, 2016, at Denver, Colorado.
BY THE COURT:

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