Harper v. Philips et al

Filing 30

ORDER granting 21 Motion for Summary Judgment, by Magistrate Judge Michael E. Hegarty on 1/04/2016.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00273-MEH
SHAWN HARPER,
Plaintiff,
v.
SHARON PHILLIPS,
in her individual and official capacities as a nurse practitioner,
Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion for Summary Judgment (“Motion”) [filed September
4, 2015; docket #21]. The Court finds that oral argument will not assist in the adjudication of the
Motion. For the reasons that follow, the Court grants the Motion.1
BACKGROUND
I.

Procedural History
Plaintiff initiated this lawsuit as a pro se litigant currently incarcerated at the Colorado State

Penitentiary (“CSP”). Plaintiff filed his Complaint on February 9, 2015, in forma pauperis, against
Defendant Sharon Phillips, in her individual and official capacities as a nurse practitioner, alleging
a deprivation of his Constitutional rights pursuant to 42 U.S.C. § 1983. See docket #1. Magistrate
Judge Gordon P. Gallagher reviewed the Complaint, found it sufficient, and had the case drawn to

1

Pursuant to 28 U.S.C. § 636(c) and the Pilot Program to Implement the Direct
Assignment of Civil Cases to Full Time Magistrate Judges, the parties consented to the
jurisdiction of this Court to conduct all proceedings in this civil action. Dockets ##51-52.

a presiding judge on February 10, 2015 [see docket #5], at which time this Court was assigned the
case [docket #6].
On September 4, 2015, Defendant filed the current Motion. Docket #21. On October 8,
2015, having not received a response from Plaintiff, the Court issued a Minute Order informing
Plaintiff as follows:
Pursuant to D.C. Colo. LCivR 56.1(a), Plaintiff is reminded that he may file a written
response to the Motion. Because the Court has not previously instructed this pro se
Plaintiff of his opportunity to respond, the Court will accept a late-filed written
Response to the Motion on or before November 2, 2015. Without a showing of
exceptional cause, the Court will grant no extensions beyond this date.
Docket #22.
On October 12, 2015, Defendant filed a motion to vacate the upcoming final pretrial
conference, which was to be held November 2, 2015. Docket #23. The Court on October 13, 2015,
granted that motion, indicating the final pretrial conference would “be rescheduled, if necessary,
upon the Court’s order ruling on the pending motion for summary judgment.” Docket #25. Two
weeks later, on October 28, 2015, Plaintiff filed a “motion for continuance” and request for
appointment of free counsel. Docket #27. The Court denied without prejudice the request for
appointment of free counsel, as Plaintiff did not provide the Court “with information regarding the
factors for the Court to consider pursuant to D.C. Colo. LAttyR 15(f)(1)(B).” Docket #29.
However, the Court granted Plaintiff’s “motion for continuance” – which in effect was a request for
Plaintiff to have more time to file a response to Defendant’s Motion – allowing him the ability to
file it “on or before November 23, 2015.” Docket #29. Plaintiff also on October 28, 2015, filed
what he labeled a “letter.” Docket #28. It appeared to be a proposed final pretrial order, which the
Court explained in its subsequent Minute Order was an unnecessary filing because the Court had

2

vacated the Final Pretrial Conference. Docket #29. Plaintiff also attached to his “letter” a variety
of documents [see docket #28 at 6-18], which the Minute Order noted were improperly filed,
because “any request for relief from this Court must be made in the form a motion” [docket #29].
Despite having been granted permission and two extensions to file a response, Plaintiff failed
to do so. No further communications have been made by Plaintiff to the Court as of the time of this
Order. Failure to file a response within the time specified results in a waiver of the right to respond
or to controvert the facts asserted in the summary judgment motion. Reed v. Bennett, 312 F.3d 1190,
1195 (10th Cir. 2002). Under these circumstances, a court accepts as true “all material facts asserted
and properly supported in the summary judgment motion. But only if those facts entitle the moving
party to judgment as a matter of law should the court grant summary judgment.” Id. Therefore, the
Court here has accepted as true all properly supported facts provided by Defendant; however, given
Plaintiff’s pro se status, it has done so only after a liberal review of facts provided by Plaintiff in his
Complaint [see docket #1], as well as in his “letter” and exhibits to that document [see docket #28].2
Plaintiff’s suit asserts two claims against Defendant, both pursuant to 42 U.S.C. § 1983 for
violations of his Eighth Amendment rights. See docket #1 at 7-11. “The Eighth Amendment, which
applies to the states through the Due Process Clause of the Fourteenth Amendment, prohibits the
infliction of cruel and unusual punishments on those convicted of crimes.” Wilson v. Seiter, 501

2

Typically, in the summary judgment context, a pro se litigant’s verified complaint may
be treated as an affidavit so long as it satisfies the standards for affidavits outlined in Fed. R.
Civ. P. 56. See Adams v. Dyer, 223 F. App’x 757, 764 n.7 (10th Cir. 2007) (citing Conaway v.
Smith, 853 F.2d 789, 792 (10th Cir. 1988)). However, the Court’s review of these materials lead
to the conclusion that Plaintiff raises no genuine issues of material fact. Defendant’s Motion
incorporates Plaintiff’s facts, which the Court has included in its Findings of Fact below. Yet
Defendant’s Motion then provides additional facts not countered in any way by Plaintiff.
Without a response filed and with nothing on which to counter Defendant’s additional facts, the
Court adopts them as true in consideration of this Motion.
3

U.S. 294, 296-97 (1991). The Eighth Amendment is the main source of prisoners’ substantive rights
and, regarding convicted prisoners, the legal standards under the Eighth and Fourteenth
Amendments are generally congruous. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.
1996) (noting that where constitutional protection is afforded under specific constitutional
provisions, here the Eighth Amendment, alleged violations of the protection should be analyzed
under those provisions and not under the more generalized provisions of the Fourteenth
Amendment). Thus, the Court reviews Plaintiff’s claim under the Eighth Amendment as applicable
to the states through the Fourteenth Amendment. Riddle, 83 F.3d at 1202.
In his first claim, Plaintiff alleges that on January 12, 2015, Defendant denied Plaintiff
medical care for his chronic back pain, including his requests for pain medication, a back brace, and
additional mattresses. Docket #1 at 7-10. In his second claim, Plaintiff alleges that Defendant
discontinued his prescription for Bentyl, which had been prescribed to Plaintiff for treatment of his
rectal prolapse. Id. at 11-13. Plaintiff also notes within claim two that Defendant discontinued his
ability to receive the medication Excedrin. Id. at 11. Plaintiff seeks punitive damages in the amount
of $1,500,000.00 against Defendant in her individual capacity. Id. at 15. He also seeks an order of
injunction against Defendant in her official capacity, requiring Defendant to place Plaintiff “back
on his medications,” and to provide Plaintiff with pain medications, a back brace, and two mattresses
for treatment of his back pain. Id.
II.

Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to

Plaintiff, who is the non-moving party regarding Defendant’s Motion.
A.

Plaintiff’s Failure to Exhaust Administrative Remedies

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1.

Anthony DeCesaro is the Step 3 Grievance Officer for the CDOC and is the custodian of

records for Step 3 grievances. See Affidavit of Anthony DeCesaro (“DeCesaro Aff.”), docket #21-1
at ¶¶ 1- 2.
2.

The CDOC provides offenders with administrative remedies pursuant to a three-step

grievance process set forth by Administrative Regulation (“AR”) 850-04. Id. at ¶ 3.
3.

AR 850-04 sets forth that offenders are required to first attempt to resolve any issue or

complaint they have by filing a document known as a Step 1 grievance within 30 days of the
discovery of the issue or complaint, to which an appropriate staff person for the CDOC responds in
writing. Id. at ¶ 4.
4.

If the offender is not satisfied with the result of the Step 1 grievance, he must then proceed

to file another grievance form concerning the issue, known as a Step 2 grievance, within 5 days of
receipt of the written response to the Step 1 grievance. Id. at ¶ 5.
5.

If the offender is still unsatisfied with the response to his Step 2 grievance, he must then

proceed to file a Step 3 grievance within 5 days of receipt of the written response to the Step 2
grievance. Id. at ¶ 6.
6.

The Step 3 grievance is the final step in the CDOC grievance process. Id. at ¶ 7.

7.

If an offender fails to timely file any grievance within the time periods provided by the

grievance process, he has failed to comply with AR 850-04 or to exhaust his administrative
remedies. Id. at ¶ 8.
8.

With regard to Plaintiff’s complaints regarding Defendant’s alleged discontinuation of his

prescription for Bentyl, Plaintiff did not exhaust his administrative remedies with respect to this
claim because Plaintiff failed to submit his Step 3 grievance in accordance with the applicable time

5

frames provided in AR 850-04. Id. at ¶ 16.
9.

With regard to Plaintiff’s complaints regarding Defendant’s alleged failure to provide him

medical care on January 12, 2015, for treatment of his back pain, Plaintiff did not exhaust his
administrative remedies with respect to this claim because he failed to file a Step 3 grievance. Id.
at ¶ 17.
B.
10.

Plaintiff’s Prescription for Bentyl

Plaintiff arrived at the CDOC in March of 2011 with a prescription for Bentyl (Dicyclomine),

which Plaintiff had previously received while in county jail. See Affidavit of Dr. Susan Tiona
(“Tiona Aff.”), docket #21-2 at ¶ 7; Affidavit of Sharon Phillips (“Def. Aff.”), docket #21-3 at ¶ 8.
11.

Bentyl is an anti-cholinergic medication that relaxes the smooth muscles in the colon. It is

most commonly used to treat irritable bowel syndrome (“IBS”), but only the diarrhea predominant
form of IBS. See Tiona Aff. at ¶ 8; Def. Aff. at ¶ 9.
12.

Per CDOC policy, Plaintiff’s prescription for Bentyl was continued until he could be

evaluated by a health care provider for his intestinal/digestive complaints. See Tiona Aff. at ¶ 9;
Def. Aff. at ¶ 10.
13.

Plaintiff’s prescription for Bentyl was renewed for 90 days upon his arrival to the CSP, and

then again for an additional 90 days, because he had not yet seen a provider for this specific medical
complaint. See Tiona Aff. at ¶ 10; Def. Aff. at ¶ 11.
14.

Plaintiff bore the responsibility of contacting the facility medical clinic to request an

appointment to be seen for his digestive condition, but he failed to do so until many months after his
arrival to the CDOC. See Tiona Aff. at ¶ 11; Def. Aff. at ¶ 12.
15.

Plaintiff’s first mention of any specific intestinal complaint occurred on July 3, 2011, when

6

he was incarcerated in the Colorado Territorial Correctional Facility (“CTCF”) infirmary recovering
from a significant self-inflicted wound. At that time, Plaintiff informed the provider that he had a
history of rectal prolapse. See Tiona Aff. at ¶ 12; Def. Aff. at ¶ 13.
16.

On August 9, 2011, Plaintiff’s prescription for Bentyl was renewed for 180 days. See Tiona

Aff., docket #21-2 at ¶ 13; Def. Aff., docket #21-3 at ¶ 15.
17.

Plaintiff was seen by Dr. Hodge for intestinal complaints on January 19, 2012. See Tiona

Aff. at ¶ 14; Def. Aff. at ¶ 18.
18.

Dr. Hodge noted that “[Patient] also complains that some of his intestine (rectum) sometimes

comes out with defection; thinks the Bentyl helps with this.” Dr. Hodge noted that Plaintiff’s
prescription for Bentyl would be renewed for now, though a period of bowel observation could be
an option for determining the severity of Plaintiff’s problems. See Tiona Aff. at ¶ 14; Def. Aff. at
¶ 18.
19.

Plaintiff’s prescription for Bentyl automatically expired in July of 2012. See Tiona Aff. at

¶ 15; Def. Aff. at ¶ 19.
20.

Between July of 2012 and May of 2014, Plaintiff did not request a renewal of his prescription

for Bentyl despite being seen on numerous occasions by medical and mental health providers, and
despite seeking renewals of other prescribed medications. See Tiona Aff. at ¶ 16; Def. Aff. at ¶ 20.
21.

On June 2, 2014, Plaintiff was admitted to the CTCF infirmary for surgical convalescence

following surgical repair of his rectal prolapse. If Plaintiff had been requesting Bentyl for treatment
bowel spasms associated with his rectal prolapse, this corrective surgery would have eliminated that
need. See Tiona Aff. at ¶ 18; Def. Aff. at ¶ 26.
22.

Two days after surgery, Plaintiff reported to the infirmary provider that he was experiencing

“a lot of cramping,” and Bentyl was ordered for 10 days to help with this complaint. See Tiona Aff.
7

at ¶ 19; Def. Aff. at ¶ 27.
23.

Plaintiff was discharged from the infirmary and transferred to the San Carlos Correctional

Facility (“SCCF”) on June 12, 2014. See Tiona Aff. at ¶ 20; Def. Aff. at ¶ 29.
24.

Upon Plaintiff’s arrival to the SCCF, Defendant, per standard procedure, conducted a chart

review of Plaintiff’s medical history. Plaintiff’s medical records demonstrate that no changes were
made to his medication protocol with the exception of a prescription for Tylenol 3, which was
discontinued because of Plaintiff’s documented allergy to Codeine. See Tiona Aff. at ¶ 21; Def. Aff.
at ¶ 31.
25.

On June 14, 2014, Plaintiff’s 10-day Bentyl prescription (which was ordered for treatment

of transient post-operative cramping) expired automatically. See Tiona Aff. at ¶ 22; Def. Aff. at ¶
32.
26.

Plaintiff did not request a renewal of this medication following its automatic expiration, nor

would a renewal have been appropriate as Plaintiff was not complaining of any stomach pain or
discomfort. See Tiona Aff. at ¶ 22; Def. Aff. at ¶ 32.
27.

Defendant did not discontinue Plaintiff’s prescription for Bentyl. The prescription, which

was issued for a 10-day period of time, expired automatically. Further, there was no medical
indication for Defendant to restart the Bentyl as Plaintiff did not request a renewal of the medication
nor did he complain of any stomach pain while incarcerated in the SCCF. See Tiona Aff. at ¶ 23;
Def. Aff. at ¶ 58.
28.

It is Dr. Tiona’s expert opinion that the medical care rendered by Defendant to Plaintiff with

respect to Plaintiff’s rectal prolapse was appropriate, timely, and met medical standards of care. See
Tiona Aff. at ¶ 24.
C.

Plaintiff's Prescription for Excedrin
8

29.

Upon his arrival to the CDOC, Plaintiff reported a very lengthy and extensive history of

substance abuse problems. See Tiona Aff. at ¶ 26; Def. Aff. at ¶ 5.
30.

Plaintiff’s abuse of substances continued during his incarceration in the CDOC with Plaintiff

frequently abusing and misusing his prescription medications. See Tiona Aff. at ¶ 26; Def. Aff. at
¶ 59.
31.

Within weeks of arriving to the CDOC, on March 21, 2011, Plaintiff was discovered abusing

his prescription for Wellbutrin. See Tiona Aff. at ¶ 27; Def. Aff. at ¶ 6.
32.

Less than a month later, on or about April 14, 2011, security staff reported that they

discovered a second cup in Plaintiff’s cell that he was using to feign taking his medication. Security
staff conducted a shakedown of Plaintiff’s cell, where it was suspected that Plaintiff flushed several
pills down his toilet. See Tiona Aff. at ¶ 28; Def. Aff. at ¶ 7.
33.

On December 20, 2011, Plaintiff was again documented misusing and/or hoarding

medications. The incident was reported to mental health staff and Plaintiff’s mental health provider
discontinued his psychiatric medications because of his continued abuse of the medications. See
Tiona Aff. at ¶ 29; Def. Aff. at ¶ 16.
34.

Plaintiff’s psychiatric medication was renewed following subsequent consultations with

mental health wherein Plaintiff acknowledged his behavior and demonstrated a willingness to follow
medical instructions with respect to the use of prescribed medications. See Tiona Aff. at ¶ 30.
35.

On February 17, 2013, Plaintiff was discovered taking medications not prescribed to him.

See Tiona Aff. at ¶ 31; Def. Aff. at ¶ 21.
36.

On January 3, 2014, Plaintiff was seen for a complaint of headaches. Plaintiff reported that

he had been getting headaches for the last one to two months, but he denied a previous history of
headaches. See Tiona Aff. at ¶ 32; Def. Aff. at ¶ 22.
9

37.

Plaintiff was prescribed Excedrin for treatment of his headaches and was provided a supply

of 30 tablets per month for self-administering with instructions to take two tablets every six hours,
not to exceed eight tablets in a 24-hour period, and not to take for a duration of longer than 48 hours.
See Tiona Aff. at ¶ 32; Def. Aff. at ¶ 22.
38.

The prescription was issued for a four month period of time. See Ambulatory Health Record

(“AHR”), January 3, 2014, docket #21-3 at 27.
39.

Shortly after receiving this prescription, on February 11, 2014, Plaintiff submitted a kite

complaining about the prescribed amount of Excedrin provided. The provider explained to Plaintiff
that the limit was set by the pharmacy. The provider also issued Plaintiff an additional prescription
for Tylenol. See Tiona Aff. at ¶ 33; Def. Aff. at ¶ 23; see also AHR, February 11, 2014, docket
#21-3 at 28.
40.

On April 1, 2014, Plaintiff submitted a kite for additional Excedrin. Plaintiff requested that

his prescription be doubled as he reported using a 30-day supply of medication within two weeks.
See Tiona Aff. at ¶ 34; Def. Aff. at ¶ 24; see also AHR, April 1, 2014, docket #21-3 at 29.
41.

Several days later, on April 8, 2014, Plaintiff was counseled about his abuse of medications

and caffeine, an ingredient present in Excedrin. The provider discussed with Plaintiff his addictive
behavior and his use of caffeine to get high. Plaintiff was counseled as to the potential medical risks
of abusing caffeine-related products and medications. See Tiona Aff. at ¶ 35; Def. Aff. at ¶ 25; see
also AHR, April 8, 2014, docket #21-3 at 30.
42.

On June 9, 2014, a provider noted that Plaintiff’s use of Excedrin exceeded the recommended

usage of the medication. Later that same day, another provider noted that Plaintiff was seeking
additional Excedrin beyond his prescribed dosage. See AHR, June 9, 2014, docket #21-3 at 33-34;
see also Tiona Aff. at ¶ 36;
10

43.

Plaintiff was transferred to the SCCF on June 12, 2014, wherein Defendant conducted a chart

review of Plaintiff’s medical file. Defendant did not make any changes to Plaintiff’s prescription
for Excedrin. See Tiona Aff. at ¶ 21; Def. Aff. at ¶ 31; see also AHR, June 12, 2014, docket #21-3
at 35.
44.

On June 22, 2014, Plaintiff requested that he be provided Excedrin. See AHR, June 22,

2014, docket #21-3 at 36. Though Plaintiff was provided a supply of Excedrin with a recommended
dosage protocol, Plaintiff exceeded the dosage protocol and utilized the remainder of his medication
before the allowable renewal date for the same. See Tiona Aff. at ¶ 38; Def. Aff. at ¶ 33.
45.

Plaintiff became extremely upset with medical staff and tried to insist that he be provided

with a back stock of Excedrin. See AHR, June 25, 2014, docket #21-3 at 37.
46.

Defendant was alerted to Plaintiff’s misuse of his prescription for Excedrin, and on June 25,

2014, in accordance with Department policy and clinical standards, Defendant discontinued the
medication and offered Plaintiff alternative measures for pain management, to include Motrin or
Tylenol, which Plaintiff refused. See Tiona Aff. at ¶¶ 38-39; Def. Aff. at ¶¶ 33-34; see also AHR,
June 26, 2014, docket #21-3 at 38-42.
47.

The discontinuation of Excedrin was medically indicated as Plaintiff’s medical records

demonstrated that since receiving a prescription for Excedrin six months earlier, Plaintiff had
frequently abused the medication by exceeding the dosage protocol and consuming excess
medication in contradiction of prescription guidelines. See Tiona Aff. at ¶ 39; Def. Aff. at ¶ 35.
48.

The CDOC had a zero-tolerance policy for abuse of medication by offenders, a policy about

which Plaintiff has been counseled. See Tiona Aff. at ¶ 39; Def. Aff. at ¶ 35.
49.

In addition to misusing Excedrin, Plaintiff also exhibited inappropriate behavior and verbal

aggression with nursing staff when demands for additional Excedrin were not met. See Tiona Aff.
11

at ¶ 40; Def. Aff. at ¶ 36; see also AHR, June 26, 2014, docket #21-3 at 37.
50.

Given Plaintiff’s frequent misuse of the Excedrin and his inappropriate behavior towards

nursing staff with respect to this medication, it is Dr. Tiona’s expert opinion that it was medically
indicated and appropriate for Defendant to discontinue Plaintiff’s prescription for Excedrin. See
Tiona Aff. at ¶ 41.
51.

Defendant reissued Plaintiff’s prescription for Excedrin on November 24, 2014, following

Plaintiff’s acknowledgment of his prior misuse of the medication, and his willingness to follow
prescription guidelines with respect to use of prescribed medications. See Tiona Aff. at ¶ 42; Def.
Aff. at ¶ 43.
52.

However, Plaintiff’s misuse of Excedrin resumed in January of 2015 when he sought

additional medication in excess of the prescription guidelines. Plaintiff was informed by a medical
provider that because of the nature of the medication, Plaintiff would not be provided with additional
Excedrin. Plaintiff was offered alternate medications for pain management, which Plaintiff refused.
See Tiona Aff. at ¶ 43; Def. Aff. at ¶ 50; see also AHR, January 20, 2015, docket #21-3 at 50.
53.

Upon learning he would not be provided with additional Excedrin, Plaintiff became agitated

and argumentative with staff. Plaintiff’s behavior than escalated when he purposefully covered his
cell window and barricaded himself under his bed in an attempt to prevent staff from monitoring his
movements. Plaintiff was instructed several times to come to the door and cuff up, orders which
Plaintiff disregarded. See Tiona Aff. at ¶ 43-44; Def. Aff. at ¶ 50-51.
54.

Because of Plaintiff’s nonresponsive and noncompliant behavior, staff was forced to

physically enter Plaintiff’s cell in order to gain his compliance. Plaintiff then became physically
violent with staff, including kicking his legs aggressively at staff members. See Tiona Aff. at ¶ 44;
Def. Aff. at ¶ 51.
12

55.

On January 18, 2015, Plaintiff was removed from population due to his misconduct. During

a pack-out of Plaintiff’s property, a pill was found hidden in his cell. See Tiona Aff. at ¶ 45; Def.
Aff. at ¶ 53.
56.

Plaintiff’s aggressive and hostile behavior towards staff continued after his removal from

population. On January 20, 2015, Plaintiff again requested that he receive additional Excedrin in
excess of prescription guidelines. See Tiona Aff. at ¶ 46; Def. Aff. at ¶ 54; see also AHR, January
20, 2015, docket #21-3 at 50.
57.

Plaintiff was informed that he would not be provided additional Excedrin, and he was offered

Tylenol instead. Plaintiff refused the alternate medication and proceeded to cover his cell window
to prevent staff from observing his movements. See Tiona Aff. at ¶ 46; Def. Aff. at ¶ 54.
58.

Plaintiff then broke a sprinkler nozzle and flooded his cell and surrounding areas with water

and feces. Plaintiff actions continued throughout the day with him continuing to defile the area with
his excrement. See Tiona Aff. at ¶ 46; Def. Aff. at ¶ 54; see also AHR, January 20, 2015, docket
#21-3 at 51.
59.

On January 20, 2015, Defendant discontinued Plaintiff’s prescription for Excedrin because

of his violent behavior toward staff and his continued overuse of the medication. Plaintiff was
provided Tylenol in its place. See Tiona Aff. at ¶ 47; Def. Aff. at ¶ 55; see also AHR, January 20,
2015, docket #21-3 at 51.
60.

It is Dr. Tiona’s expert opinion that Defendant’s actions in discontinuing Plaintiff’s

prescription for Excedrin were appropriate and medically indicated. See Tiona Aff. at ¶ 48.
61.

Defendant’s decision was appropriate because the CDOC has a zero-tolerance policy with

respect to offenders abusing prescribed medications, and Plaintiff was abusing his prescription for
Excedrin and exhibiting aggressive behavior toward staff with respect to this medication.
13

Defendant’s actions were also medically indicated as Plaintiff was documented as continually
overusing this medication by exceeding the dosage protocol and by consuming excess medication
in contradiction of prescription guidelines. Id.
62.

It is Dr. Tiona’s expert opinion that the medical care rendered by Defendant to Plaintiff with

respect to his prescription for Excedrin was appropriate, timely, and met medical standards of care.
Id. at ¶ 49.
D.
63.

Plaintiff’s Complaint of Back Pain

Plaintiff had a lumbar laminectomy (back surgery usually done to correct a herniated disk)

in 1991, a procedure that was revised in 1996 or 1997. However, the events and exact pathology
leading up to these two surgeries is not documented. See Tiona Aff. at ¶ 50; Def. Aff. at ¶ 45.
64.

Plaintiff’s medical records show that he was instructed on proper back care (stretching and

strengthening exercises), and that he was prescribed over the course of time several different
medications for control of his back pain. See Tiona Aff. at ¶ 51.
65.

It is Dr. Tiona’s expert opinion that Plaintiff’s medical records support a conservative

treatment plan for care of Plaintiff’s back pain complaints. Id.
66.

On January 12, 2015, Defendant saw Plaintiff in clinic for his complaints of lower back pain.

See Tiona Aff. at ¶ 52; Def. Aff. at ¶ 45; see also AHR, January 12, 2015, docket #21-3 at 47.
67.

During the consult, Plaintiff reported that he was doing back strengthening exercises in his

cell, including stretching and pilates, but that the techniques were no longer effective in managing
his back pain. Plaintiff requested a consult to orthopedics. See Tiona Aff. at ¶ 52; Def. Aff. at ¶ 48.
68.

At the time of the encounter, Plaintiff was receiving both Neurontin and Tylenol for pain

management. See Tiona Aff. at ¶ 53; Def. Aff. at ¶ 47;
69.

Defendant conducted a physical examination of Plaintiff, and noted that Plaintiff ambulated
14

without difficulty and maneuvered on and off the exam table easily. Defendant noted that Plaintiff
demonstrated tenderness of the sacroiliac joint and a positive straight let raise with the left leg,
which could have indicated a pinched nerve. See Tiona Aff. at ¶ 54; Def. Aff. at ¶ 46; see also
AHR, January 12, 2015, docket #21-3 at 47.
70.

As a follow-up measure, Defendant ordered a non-emergent x-ray of Plaintiff’s lower back

to determine if any significant changes had occurred since Plaintiff’s previous X-ray in October of
2011. Defendant also renewed Plaintiff’s prescription for Tylenol, which was set to expire. See
Tiona Aff. at ¶ 55; see also AHR, January 12, 2015, docket #21-3 at 47.
71.

During his encounter with Defendant on January 12, 2015, Plaintiff made no requests for

additional pain medication, a back brace or extra mattresses. See Tiona Aff. at ¶ 59; Def. Aff. at ¶
62; see also AHR, January 12, 2015, docket #21-3 at 47.
72.

However, even if Plaintiff had made such requests, it is Dr. Tiona’s expert opinion that such

measures were not medically necessary given Plaintiff’s current course of care and the provider’s
objective evaluation and assessment of Plaintiff. See Tiona Aff. at ¶ 60.
73.

With respect to Plaintiff’s claims regarding pain medications, at the time of the encounter,

Plaintiff was receiving medications for management of his back pain, including Neurontin and
Tylenol. Based on Dr. Tiona’s expert opinion, there was no medical indication that Plaintiff
required additional pain medications in excess of those that were already prescribed. See Tiona Aff.
at ¶ 61.
74.

With respect to Plaintiff’s claims concerning additional mattresses and a back brace, it is Dr.

Tiona’s expert opinion that these measures are not medically necessary for the treatment of back
pain and were not medically indicated for treatment of Plaintiff’s complaints of back pain. See
Tiona Aff. at ¶ 62.
15

75.

Based on a study performed by the United States Preventive Services Task Force, a panel

of experts found that certain medical interventions, to include additional mattress and back braces,
offer no clear proof of benefit to those patients utilizing such methods. See Tiona Aff. at ¶ 62; Def.
Aff. at ¶ 62.
76.

In keeping with this study, the CDOC has determined that certain preventative measures such

as extra mattresses and back braces, which have not been found to be of any discernible benefit, will
not be supplied by facility clinics or any CDOC health care provider. See AR 700-34-IV-B-3; see
also Tiona Aff. at ¶ 63; Def. Aff. at ¶ 62.
77.

While exceptions to this policy may be made in rare circumstances where there is a strong

indication for such use, it is Dr. Tiona’s expert opinion that Plaintiff’s condition would not have
necessitated deviation from the CDOC’s stance on the medical benefit offered by these particular
interventions. See Tiona Aff. at ¶ 63; Def. Aff. at ¶ 62.
78.

Following the January 12, 2015 consultation, Plaintiff was scheduled for an X-ray

appointment; however, two days before his scheduled appointment, Plaintiff engaged in physically
violent behavior towards staff. See Tiona Aff. at ¶ 56; Def. Aff. at ¶ 51; see also AHR, January 20,
2015, docket #21-3 at 51.
79.

During his physical altercation with staff, Plaintiff demonstrated extensive use of his back

and legs, with full range of motion. See Def. Aff. at ¶ 52.
80.

Two days later, on the day of his scheduled appointment, Plaintiff broke a sprinkler nozzle

and flooded his cell and the surrounding areas with water and feces. Plaintiff’s actions lasted
throughout the day with him continuing to defile the area with his excrement. See Tiona Aff. at ¶
56; Def. Aff. at ¶ 54.
81.

Given Plaintiff’s violent and aggressive behavior, Defendant determined that it was not safe
16

for staff to transport Plaintiff for a non-essential X-ray, and the appointment was cancelled. See
Tiona Aff. at ¶ 56; Def. Aff. at ¶ 56; see also AHR, January 20, 2015, docket #21-3 at 51.
82.

It is Dr. Tiona’s expert opinion that Defendant’s decision to cancel a non-urgent appointment

was appropriate because Plaintiff’s volatile and aggressive behavior created a serious safety and
security risk with the transport of this particular offender outside of the prison setting. See Tiona
Aff. at ¶ 56.
83.

Plaintiff made no further complaints of back pain while incarcerated at the SCCF, and he was

transferred to the Colorado State Penitentiary on February 24, 2015, at which point Defendant no
longer provided medical care or treatment to Plaintiff. See Tiona Aff. at ¶ 57; Def. Aff. at ¶ 57.
84.

It is Dr. Tiona’s expert opinion that the care provided by Defendant to Plaintiff in regard to

his complaints of back pain was appropriate, timely and consistent with medical standards of care.
See Tiona Aff. at ¶ 58.
LEGAL STANDARDS
I.

Treatment of a Pro Se Plaintiff’s Complaint
A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations
and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite
the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the
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proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see
also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)).
II.

Dismissal under Fed. R. Civ. P. 56
A motion for summary judgment serves the purpose of testing whether a trial is required.

Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant
summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits
show there is no genuine issue of material fact, and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit
under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis
for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry
its initial burden either by producing affirmative evidence negating an essential element of the
nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence
to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976,
979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for
summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
1985).
The non-moving party has the burden of showing there are issues of material fact to be
determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for
summary judgment, the opposing party may not rest on the allegations contained in his complaint,
but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e);
Scott v. Harris, 550 U.S. 372, 380 (2007) (“[t]he mere existence of some alleged factual dispute
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between the parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation
omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir.
2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in
Rule 56(c), except the mere pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006,
1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment
evidence must be generally admissible and . . . if that evidence is presented in the form of an
affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the
evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114,
1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most
favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431
F.3d 1241, 1255 (10th Cir. 2005).
ANALYSIS
Defendant first raises the affirmative defense that Plaintiff failed to properly exhaust his
administrative remedies. Docket #21 at 16. The Prison Litigation Reform Act (“PLRA”) requires
a prisoner to exhaust any available administrative remedies before challenging prison conditions in
federal court. PLRA, 42 U.S.C. § 1997e(a) (2013); see also Booth v. Churner, 532 U.S. 731, 733
(2001). The administrative remedies provision of the PLRA states:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.
§ 42 U.S.C. 1997e(a). At one time, exhaustion was left to the discretion of the district court;
however, it has since become mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006). “Prisoners

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must now exhaust all ‘available’ remedies, not just those that meet federal standards.” Id.
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the
exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204
(2007). The purpose of proper exhaustion is to reduce the number of inmate suits, and also to
improve the quality of suits that are filed by producing a useful administrative record. Id. (quoting
Woodford, 548 U.S. at 94-95).
Accordingly, the Supreme Court has determined “exhaustion is mandatory under the PLRA”
and “unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 204. The exhaustion of
administrative remedies need not be pleaded in the complaint but must be raised as an affirmative
defense. Id. The rules governing the process for fulfilling the administrative remedy obligation are
not articulated by the PLRA but are defined by the respective prison grievance process. Id. at 205.
In order to “properly exhaust” in satisfaction of the PLRA requirement, the plaintiff prisoner must
comply with all prison grievance procedures. Id.; see also Woodford, 548 U.S. at 90-91 (finding that
the PLRA exhaustion requirement “demands compliance with an agency’s deadlines and other
critical procedural rules”). Therefore, according to Jones, claims that have not progressed through
the prison grievance process may not be brought in court.
The CDOC maintains a written grievance procedure that includes three levels of appeal for
its inmates. A.R. 850-04.3 CDOC Administrative Regulation, Docket #21-1 at 6-17. Offenders are
required to first attempt to resolve any issue or complaint they have by filing a document known as
a Step 1 grievance within 30 days of the discovery of the issue or complaint, to which an appropriate
staff person for the CDOC responds in writing. Id. at 13. If the offender is not satisfied with the

3

The complete regulation is available on the CDOC’s website, www.colorado.gov/cdoc/.
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result of the Step 1 grievance, he must then proceed to file another grievance form concerning the
issue, known as a Step 2 grievance, within 5 days of receipt of the written response to the Step 1
grievance. Id. If the offender is still unsatisfied with the response to his Step 2 grievance, he must
then proceed to file a Step 3 grievance within 5 days of receipt of the written response to the Step
2 grievance. Id. The Step 3 grievance is the final step in the CDOC grievance process. Id.
If an offender fails to timely file any grievance within the time periods provided by the
grievance process, he has failed to comply with AR 850-04 or to exhaust his administrative
remedies. Id. Further, the PLRA mandates that a plaintiff must exhaust his administrative remedies
before filing the action; if matters remain pending in the prison’s grievance system at the time the
lawsuit is filed, the prisoner has failed to comply with § 1997e(a). See Price v. Shinn, 178 Fed.
App’x 803, 805 (10th Cir. April 28, 2006), citing Steele v. Fed. Bureau of Prisons, 355 F.3d 1203,
1212 (10th Cir. 2003) (“[r]esort to a prison grievance process must precede resort to a court)
(additional citations omitted). A prisoner does not exhaust his administrative remedies when he fails
to properly complete the grievance process or correct deficiencies in his grievances before filing a
lawsuit. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). “An inmate who begins
the grievance process but does not complete it is barred from pursuing a Section 1983 claim under
the PLRA for failure to exhaust his administrative remedies.” Id. Only if the prisoner has exhausted
all administrative remedies may he or she then file a suit in federal court. Jones, 549 U.S. at 204.
Here, Plaintiff does not address in his Complaint, or any other documents provided to the
Court, his failure to exhaust administrative remedies. However, Defendant’s Motion provides
evidence to demonstrate Plaintiff failed to exhaust his administrative remedies. See generally docket
#21. Specifically, with respect to Plaintiff’s claim about the alleged discontinuation of his
prescription for Bentyl, Defendant shows that Plaintiff failed to submit his Step 3 grievance in
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accordance with the applicable time frames provided in AR 850-04. Docket #21-1 at 26-27.
Plaintiff filed a Step 3 grievance on August 25, 2014, but it was required to be filed by August 20,
2014. Id. Prison officials informed Plaintiff via letter dated September 19, 2014, that he had failed
to exhaust his administrative remedies with regard to the discontinuation of Bentyl. Id. at 27.
Within Defendant’s claim about being denied Bentyl, Defendant mentions in passing that he was
also denied Excedrin for his headaches. Docket #21 at 11. However, Plaintiff did not file
grievances regarding not being provided Excedrin, let alone exhaust his administrative remedies.
See generally docket #21-1 at 1-4.
With regard to Plaintiff’s claim regarding Defendant’s alleged failure to provide him medical
care on January 12, 2015, for treatment of his back pain, Defendant provides evidence to show that
Plaintiff did not exhaust his administrative remedies because he failed to file a Step 3 grievance at
all. See docket #21-1 at 4. In fact, Defendant asserts and the Court agrees that the very timing of
the filing of this lawsuit demonstrates Plaintiff could not have completed the required prison
grievance program.

See docket #21 at 17-18. Plaintiff’s Complaint indicates that the alleged

violation of Defendant not taking care of his back pain occurred on January 12, 2015 [see docket
#1 at 4]; Plaintiff filed this lawsuit less than three weeks later [see docket #1], leaving him
insufficient time to exhaust administrative remedies.
The Court thus concludes that Plaintiff’s case is barred based on his failure to exhaust
administrative remedies as required by law before bringing a lawsuit of this nature.
CONCLUSION
Therefore, based on the foregoing and the entire record herein, this Court orders that
Defendant’s Motion for Summary Judgment [filed September 4, 2015; docket #21] is granted and
the case is dismissed with prejudice.
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Entered and dated at Denver, Colorado, this 4th day of January, 2016.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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