Paulsen v. Raemisch et al

Filing 216

ORDER. The Recommendation of United States Magistrate Judge 204 is ACCEPTED. The Recommendation of United States Magistrate Judge 205 is ACCEPTED. Motion for Summary Judgment From Defendants Susan Tiona, Karen Mitchell, David Gross, Richard M adrid, and Desiree Andrews 157 is GRANTED. Motion for Summary Judgment 166 is GRANTED. Pursuant to Fed. R. Civ. P. 4(m), plaintiff's claims against defendants Jerry Steele, Patricia Headley, L. Mortin-Earl, and Kathy M. Wiley, NP, are DIS MISSED without prejudice. Plaintiff's Rebuttal to Defendants [sic] Objections/Responses to Plaintiff's Request for Production of Documents 200 and Plaintiff's Objection to Defendants [sic] Protective Order Regarding Plaintiff' ;s Production of Documents 201 , construed as objections to the magistrate judge's February 23, 2018 Protective Order [189-190], are OVERRULED as moot. Plaintiff's Motion for Review of Plaintiffs Rebuttal to Defendants [sic] Objection t o Plaintiff's Request for Production of Documents (P.O.D.) on 03/23/2018, Also Plaintiff's Objection to Defendants [sic] Protective Order Regarding His Production of Documents Motion on 03/23/2018 211 is DENIED as moot. Judgment shall en ter against plaintiff Mark Walter Paulsen and in favor of defendants Susan Tiona, Karen C. Mitchell, David R. Gross, Richard Madrid, Desiree Andrews, and Doug Roberts. Within 14 days of the entry of this Order, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. This case is closed, by Judge Philip A. Brimmer on 9/21/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-0800-PAB-KMT
MARK WALTER PAULSEN,
Plaintiff,
v.
DOUG ROBERTS, Medical Monitor, Private Prison Monitoring Unit, CDOC,
JERRY STEELE, Private Prison Monitoring Unit, CDOC,
RICHARD MADRID, Drug and Alcohol/Addiction Services, KCCC (Kit Carson
Correctional Center),
PATRICIA HEADLEY, CAC III, Drug and Alcohol/Addiction Services, KCCC,
L. MORTIN-EARL, MA, CAC III, Drug and Alcohol/Addiction Services, KCCC,
DESIREE ANDREWS, Health Services Administrator, KCCC,
KATHY M. WILEY, NP, Health Care Provider, KCCC,
KAREN C. MITCHELL, NP, Health Care Provider, KCCC,
DAVID R. GROSS, PA, Health Care Provider, KCCC, and
SUSAN M. TIONA, MD, Facility Physician, KCCC,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “First Recommendation”) [Docket No. 204] filed on July 17, 2018,
the Recommendation of United States Magistrate Judge (the “Second
Recommendation”) [Docket No. 205] filed on July 19, 2018. In the First
Recommendation, Magistrate Judge Kathleen M. Tafoya recommends that the Motion
for Summary Judgment filed by defendants Susan Tiona, Karen Mitchell, David Gross,
Richard Madrid, and Desiree Andrews [Docket No. 157] be granted. Docket No. 204 at
19. In the Second Recommendation, the magistrate judge recommends that the Motion

for Summary Judgment [Docket No. 166] filed by defendant Doug Roberts be granted.
Docket No. 205 at 11. Plaintiff filed a timely objection, objecting only to the Second
Recommendation. Docket No. 206. Also before the Court is Plaintiff’s Objection to
U.S. Magistrate Judge’s Recommendation for Summary Judgment for Defendant(s)
Steele, Headley, L. Mortin-Earl and Wiley [Docket No. 214], which the Court construes
as a response to its September 4, 2018 Order to Show Cause. See Docket No. 209.
Finally, the Court takes up Plaintiff’s Rebuttal to Defendants [sic] Objections/Responses
to Plaintiff’s Request for Production of Documents [Docket No. 200], Plaintiff’s
Objection to Defendants [sic] Protective Order Regarding Plaintiff’s Production of
Documents [Docket No. 201], and plaintiff’s Motion for Review of Plaintiff’s Rebuttal to
Defendants [sic] Objection to Plaintiff’s Request for Production of Documents (P.O.D.)
on 03/23/2018, Also Plaintiff’s Objection to Defendants [sic] Protective Order Regarding
His Production of Documents Motion on 03/23/2018 [Docket No. 211]. In these f ilings,
plaintiff challenges the magistrate judge’s February 23, 2018 Protective Order [Docket
Nos. 189-190], which states that defendants were not required to respond to plaintiff’s
January 18, 2018 discovery requests [Docket No. 185], and requests a decision on his
challenges. See Docket No. 211. In light of plaintiff’s pro se status, the Court
construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
I. BACKGROUND
Plaintiff Mark Walter Paulsen is an inmate in the Colorado Department of
Corrections (“CDOC”). Movant’s Statment of Material Facts (“MSMF”) 1; Docket No

2

166 at 1, ¶ 1. On March 17, 2011, during the CDOC intake process, plaintiff tested
positive for the hepatitis C virus (“HCV”), genotype 1. MSMF 1. After intake, on April 6,
2011, plaintiff was assigned to Kit Carson Correctional Facility (“Kit Carson”). MSMF 6;
see also Docket No. 179 at 1-2, ¶ 6. Kit Carson is a private prison that houses inmates
for the CDOC. MSMF 1. Plaintiff sought treatment for HCV; however, under the
CDOC’s HCV treatment policy in force at that time, plaintiff was ineligible to begin HCV
treatment because of the time remaining on his sentence. Docket No. 205 at 2; see
also Docket No. 179 at 2, ¶ 6. 1 In April 2013, the CDOC revised its HCV treatment
policy, removing the requirement that inmates have a specific amount of time remaining
on their sentence in order to be eligible for treatment. Docket No. 166-1 at 7, ¶ 3.
Despite this change, inmates were still required to complete drug and alcohol programs
depending on their substance abuse level classification before receiving HCV
treatment. Id. An inmate’s substance abuse level was determined by the CDOC based
on an inmate’s background of substance abuse and other factors. See Docket No. 157
at 3-4, ¶ 14 and at 9, ¶ 59; MSMF 6, 27.
In 2014, Mr. Roberts was an employee of the Private Prison Monitoring Unit
(“PPMU”) of the CDOC. MSMF 19. He was a medical monitor, responsible for
monitoring the provision of medical services within private prisons, including Kit Carson,
to ensure that the private prisons’ policies were in compliance with CDOC policies.
MSMF 21-22. On April 29, 2014, Mr. Roberts sent a memorandum to plaintiff (the “April
1

Plaintiff argues that this policy itself constituted a constitutional violation, Docket
No. 179 at 8, but plaintiff does not object to the Second Recommendation on that basis
and there is nothing in the record indicating that Mr. Roberts had a role in formulating
the policy. See Docket No. 206 at 2.
3

2014 Memorandum”), stating that Mr. Roberts reviewed plaintiff’s case with Dennis
O’Neil, Out-Patient Clinical Supervisor, who told him that plaintiff was classified as
“level 4c.” MSMF 26; Docket No. 166-2 at 4; see also Docket No. 157 at 10, ¶ 64
(record from August 2, 2013 indicating that plaintiff was scored substance abuse level
4c). Under the CODC’s HCV treatment policy, an inmate at level 4c must complete an
intensive drug and alcohol “Therapeutic Community” program prior to receiving HCV
treatment. MSMF 27; Docket No. 166-1 at 7. A Therapeutic Community program was
not available at Kit Carson, but Mr. Roberts’ memorandum stated that plaintiff could
“attend level 4b at [Kit Carson], which will make you eligible for Hepatitis treatment.”
Docket No. 166-2 at 4; MSMF 27. Plaintiff states that, in spite of Mr. Roberts’
memorandum, plaintiff was denied level 4b treatment “because he was over qualified.”
Docket No. 179 at 6, ¶ 28.
In July, 2014, plaintiff was transferred to the CDOC’s Buena Vista Correctional
Facility (“Buena Vista”) where he was placed in its Therapeutic Community program,
after which he began receiving HCV treatment. Docket No. 205 at 3 (citing Docket No.
158-1).
On April 15, 2015, plaintiff filed his complaint in this case. Docket No. 1. He
brings claims against Mr. Roberts pursuant to 42 U.S.C. § 1983 under the Eig hth
Amendment and Fourteenth Amendment. Docket No. 205 at 4; see also Docket Nos.
10, 72.2 On October 18, 2017, defendants Desiree Andrews, David R. Gross, Richard

2

Plaintiff has filed another case bringing claims related to the provision of his
HCV treatment at Buena Vista. Paulsen v. Booth, No. 16-cv-00129-PAB-KMT (D. Colo.
filed Jan. 19, 2016).
4

Madrid, Karen C. Mitchell, and Susan M. Tiona (collectively, the “medical defendants”)
filed their motion for summary judgment. Docket No. 157. The next day, Mr. Roberts
filed his motion for summary judgment. Docket No. 166. On January 18, 2018, after
the summary judgment motions were fully briefed and more than four months after the
close of discovery, plaintiff filed discovery requests. Docket No. 185; see also Docket
No. 113 (“ The Discovery Cut-Off is 8/4/17.”). On February 20, 2018, defendants
moved for a protective order excusing any response to the discovery requests on the
basis that they were untimely. Docket No. 187. On February 23, 2018, the magistrate
judge entered the requested protective order. Docket Nos. 189, 190. On March 28,
2018, plaintiff filed his rebuttal and objection to the protective order, which were dated
March 23, 2018, and which the Court will construe as objections to the protective order.
Docket Nos. 200, 201. On July 17 and 19, 2018, the magistrate judge issued her
Recommendations that the motions for summary judgment be granted. Docket Nos.
204, 205. On August 6, 2018, plaintiff filed his objection to the Second
Recommendation. Docket No. 206. On September 4, 2018, the Court ordered plaintiff
to show cause “why his claims against defendants Jerry Steele, Patricia Headley, L.
Mortin-Earl, and Kathy M. Wiley, NP, should not be dismissed for failure to serve
pursuant to Fed. R. Civ. P. 4(m).” Docket No. 209 at 2. On September 10, 2018,
plaintiff filed his motion for review. Docket No. 211. On September 14, 2018, plaintiff
filed an “Objection” discussing his allegations against defendants Jerry Steele, Patricia
Headley, L. Mortin-Earl, and Kathy M. Wiley (collectively, the “unserved defendants”),
which the Court construes as a response to its Septem ber 4, 2018 order to show cause
regarding the unserved defendants.
5

II. STANDARDS OF REVIEW
For magistrate judge orders on non-dispositive matters, the Court must “consider
timely objections and modify or set aside any part of the order that is clearly erroneous
or is contrary to law.” Fed. R. Civ. P. 72(a). For dispositive motions, the Court must
“determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if it is both
timely and specific. United States v. One Parcel of Real Property Known as 2121 East
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). T o be sufficiently specific, an objection
must “enable[] the district judge to focus attention on those issues – factual and legal –
that are at the heart of the parties’ dispute.” See id. at 1059 (quoting Thomas v. Arn,
474 U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review
a magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at
150 (“[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”).
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that 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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes

6

over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, when “the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir. 1994)). “In applying this standard, we view all facts
and any reasonable inferences that might be drawn from them in the light most
favorable to the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d

7

567, 569 (10th Cir. 1994).
III. ANALYSIS
A. First Recommendation
Plaintiff has not filed an objection to the First Recommendation. See Docket No.
206 at 1. Accordingly, the Court has reviewed the First Recommendation to satisfy
itself that there is “no clear error on the face of the record.”3 Fed. R. Civ. P. 72(b),
Advisory Committee Notes. The Court finds no clear error with respect to Magistrate
Judge Tafoya’s recommendation that the medical defendants’ motion for summary
judgment be granted. Plaintiff has not shown that there is a genuine issue of material
fact that the medical defendants violated plaintiff’s constitutional rights. The Court will
therefore grant the motion for summary judgment [Docket No. 163] filed by the medical
defendants. The magistrate judge recommends that plaintiff’s other pending motions
be denied as moot. Docket No. 204 at 19. Because, as discussed below , this order
resolves all plaintiff’s claims, the Court will also accept the magistrate judge’s
recommendation that plaintiff’s other motions be denied as moot.
B. Second Recommendation
Plaintiff objects to the dismissal of both his Eighth Amendment claim for
deliberate indifference to his serious medical needs and his Fourteenth Amendment
claim for violation of his due process rights against Mr. Roberts. Docket No. 206 at 1,
5.

3

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).
8

1. Deliberate Indifference Claim
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.” See Farmer v. Brennan, 511 U.S. 825, 828
(1994); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (“The Eighth Amendment,
as we have said, requires that inmates be furnished with the basic human needs, one
of which is ‘reasonable safety.’” (citing DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 199 (1989))). “The analysis [of an Eighth Amendment claim]
should not be based on ‘a court’s idea of how best to operate a detention facility,’” but
should reflect “the evolving standards of decency that mark the progress of a maturing
society,” which the Tenth Circuit has characterized as a “lofty standard.” DeSpain v.
Uphoff, 264 F.3d 965, 973-74 (10th Cir. 2001) (citing Rhodes v. Chapman, 452 U.S.
337, 351 (1981)). To prevail on his claim that a defendant violated the Eighth
Amendment, plaintiff must show that (1) objectively, the harm he complains of is
sufficiently “serious” to merit constitutional protection and (2) the defendant was
subjectively aware of a substantial risk to plaintiff’s health or safety and acted in
purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009).
Plaintiff devotes a significant portion of his objection to arguing that his health
has been significantly harmed by the progression of his HCV while he was awaiting
treatment. See, e.g., Docket No. 206 at 1. This information is relevant to the objective
prong of the deliberate indifference inquiry, but not the subjective prong on which the
magistrate judge based her recommendation. See Docket No. 205 at 7. The Court

9

assumes that plaintiff’s HCV constitutes a substantial risk to his health and limits its
discussion to whether plaintiff has shown a genuine issue of material fact under the
subjective prong. Under this prong, an action or inaction unaccompanied by a
subjective awareness of an unreasonable risk of harm does not constitute “punishment”
within the meaning of the Eighth Amendment. Farmer, 511 U.S. at 837-38. The Eighth
Amendment does not reach a prison official’s conduct unless the official “knows of and
disregards an excessive risk to inmate health or safety; 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.” Id. at 837; see also Verdecia v. Adams,
327 F.3d 1171, 1175-76 (10th Cir. 2003) (“Deliberate indif ference requires that the
defendant’s conduct is in disregard of a known or obvious risk that was so great as to
make it highly probable that harm would follow, or that the conduct disregards a known
or obvious risk that is very likely to result in the violation of a prisoner’s constitutional
rights.” (internal citations omitted)). A prisoner must therefore establish “that the
defendants knew he faced a substantial risk of harm and disregarded that risk, by
failing to take reasonable measures to abate it.” Martinez, 563 F.3d at 1089 (quotations
omitted). A court “may infer the existence of this subjective state of mind from the fact
that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738 (2002); see also
Farmer, 511 U.S. 842 (noting that state of mind can be established with circumstantial
evidence and “from the very fact that the risk was obvious”). The negligent conduct of a
prison official is, in all cases, insufficient to rise to the level of deliberate indifference.
Farmer, 511 U.S. at 835 (“Eighth Amendment liability requires more than ordinary lack

10

of due care for the prisoner’s interests or safety” (quotations omitted)). Thus, to
succeed under the subjective prong, plaintiff must show not only that Mr. Roberts was
aware of the risk to plaintiff’s health, but also that Mr. Roberts disregarded that risk. Id.
at 837; Mata v. Saiz, 427 F.3d 745, 760 (10th Cir. 2005).
Plaintiff argues that Mr. Roberts was deliberately indifferent in failing to enforce
CDOC policies that would have allowed plaintiff to be placed in HCV treatment earlier.
Docket No. 206 at 2. While it is clear from the summary judgment record that plaintiff’s
medical providers were aware of his HCV and desire for treatment before 2014, plaintiff
presents no evidence that Mr. Roberts was aware of plaintiff’s HCV diagnosis prior to
the events leading to the April 2014 Memorandum. See Docket No. 179 at 4-6; Docket
No. 180. Further, there is no evidence in the summary judgment record to support an
inference that Mr. Roberts delayed preparing the April 2014 Memorandum after he
became that plaintiff needed treatment and could receive treatment under CDOC’s
revised policy. See Docket No. 179 at 4-6; Docket No. 180. As the m agistrate judge
found, the April 2014 Memorandum constituted an attempt by Mr. Roberts to reclassify
plaintiff in such a way as to allow plaintiff, consistent with CDOC policy, to enter drug
and alcohol courses at Kit Carson that would make him eligible to receive HCV
treatment. Docket No. 205 at 7. Plaintiff ultimately did not attend such classes at Kit
Carson, but only because he was, instead, transferred to the Therapeutic Community at
Buena Vista, completion of which allowed him to receive HCV treatment. Id.; see
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (“The Supreme Court
cautioned that ‘an inadvertent failure to provide adequate medical care’ does not rise to

11

a constitutional violation.” (quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976))).
Plaintiff’s bare assertion, without supporting evidence, that Mr. Roberts’ inaction led to a
treatment delay does not create a genuine issue of material fact that Mr. Roberts was
deliberately indifferent, particularly where, as here, the defendant took affirmative steps
to see that plaintiff received treatment. See Celotex, 477 U.S. at 324; Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000); Beggs, 563 F.3d at 1089 (“Finally, the
subjective component requires the prison official to disregard the risk of harm claimed
by the prisoner.”). Therefore, the Court finds that plaintiff has not shown a genuine
issue of material fact that Mr. Roberts was deliberately indifferent and will accept the
recommendation that summary judgment enter on plaintiff’s claim that Mr. Roberts was
deliberately indifferent.
2. Due Process Claim
The Fourteenth Amendment provides that no state shall “deprive any person of
life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV; see also
Estate of DiMarco v. Wyo. Dep’t of Corrections, 473 F.3d 1334, 1339 (10th Cir. 2007).
While the Fourteenth Amendment due process guarantee applies to prison inmates,
“their due process rights are defined more narrowly.” Wilson v. Jones, 430 F.3d 1113,
1117 (10th Cir. 2005). In the prison context, the Supreme Court has established that
protected liberty interests are “generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to give rise to protection
by the Due Process Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”

12

Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Wilson, 430 F.3d at 1117 (“a
prisoner is entitled to due process before he is subjected to conditions that impose
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life, or disciplinary actions that inevitably affect the duration of his sentence.”)
(internal quotation marks and citation omitted). “In determining whether an individual
has been deprived of his [Fourteenth Amendment] right to procedural due process,
courts must engage in a two-step inquiry: (1) did the individual possess a protected
interest such that the due process protections were applicable; and if so, then (2) was
the individual afforded an appropriate level of process.” Veile v. Martinson, 258 F.3d
1180, 1184-85 (10th Cir. 2001) (citation omitted). “The burden of proof as to both
prongs is squarely on” plaintiff. McClary v. Kelly, 4 F. Supp. 2d 195, 202 (W .D.N.Y.
1998); see also Dantzler v. Beard, 2007 WL 5018184, at *2 n.1, *6 (W .D. Pa. Dec. 6,
2007) (plaintiff has burden of establishing protected interest exists). Further, “any
assessment must be mindful of the primary management role of prison officials who
should be free from second-guessing or micro-management from the federal courts.”
Estate of DiMarco, 473 F.3d at 1342.
“A due process claim under the Fourteenth Amendment can only be maintained
where there exists a constitutionally cognizable liberty or property interest with which
the state has interfered.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006)
(citation omitted). “To determine whether a plaintiff was denied procedural due
process, [the Court] engage[s] in a two-step inquiry: (1) Did the individual possess a
protected interest to which due process protection was applicable? (2) Was the

13

individual afforded an appropriate level of process?” Kirkland v. St. Vrain Valley Sch.
Dist. No. RE-1J, 464 F.3d 1182, 1189 (10th Cir. 2006) (quoting Brown v. N.M. State
Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005)). “[L]iberty interests protected by the
Fourteenth Amendment may arise from two sources – the Due Process Clause itself
and the laws of the States.” Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994)
(internal quotation marks omitted). If a prisoner claims that a prison official has
interfered with a liberty interest created by prison regulations, the Court must determine
if those regulations “employ ‘explicitly mandatory language’ and ‘specific substantive
predicates’ in a manner sufficient to create a protected interest.” Abbott, 13 F.3d at
1443.
Plaintiff argues that Mr. Roberts violated his due process rights by failing to
ensure compliance with CDOC’s treatment protocols for HCV. Docket No. 206 at 5. In
particular, plaintiff argues that Mr. Roberts failed to ensure that he had access to the
prerequisite drug and alcohol program when he was eligible and that tests called for by
CDOC’s HCV treatment protocol were carried out. Id.
With respect to plaintiff’s access to the drug and alcohol program, the Court will
assume that the CDOC’s eligibility criteria are mandatory and sufficiently specific to
create a liberty interest. Turning to the second step of the analysis, however, the Court
finds that plaintiff has not shown that Mr. Roberts’ actions deprived plaintiff of adequate
process in relation to a liberty interest. See Trujillo v. Williams, 465 F.3d 1210, 1227
(10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s direct
personal responsibility for the claimed deprivation of a constitutional right must be

14

established.”) (citations omitted). As discussed above, the April 2014 Memorandum
constituted an attempt by Mr. Roberts to make plaintiff eligible for HCV treatment by
allowing him to enroll in the necessary drug and alcohol program at Kit Carson. Plaintiff
presents no evidence or cognizable argument that this action was to the detriment of
his liberty interests or that Mr. Roberts otherwise failed to ensure that plaintiff had
access to a required program.
With respect to the plaintiff’s contention that he was not “screened for Hepato
Cellular Cancer (HCC) every six-month’s per-protocol” [sic] and did not receive other
screening such as “Esophageal Varices for those suspected of having cirrhosis,” the
Court finds that he has not shown that the CDOC’s HCV treatment policy granted him a
liberty interest in such screening. Docket No. 206 at 5. The HCV treatment policy
states that the “optimal screening strategy” for inmates with “chronic HCV infection and
cirrhosis [who] are at greater risk for HCC . . . is uncertain.” Docket No. 166-1 at 15. It
goes on to state that “screening for HCC, with a liver ultrasound annually and serum
alpha-fetoprotein every 6 months, should be considered for offenders with cirrhosis and
HCV infection.” Id. Similarly, the HCV treatment policy states that an
“[e]sophagogastroduodenoscopy (EGD)” to screen for esophageal varices “should be
obtained once in any offender with known cirrhosis and in those with suspected
cirrhosis.” Id. The language of these screening policies does not use explicitly
mandatary language based on clearly defined substantive predicates of the types that
have been held to create liberty interests. See Abbott, 13 F.3d at 1443; Steffey, 461
F.3d at 1221 (10th Cir. 2006) (“[A] deprivation occasioned by prison conditions or a
prison regulation does not reach protected liberty interest status and require procedural
15

due process protection unless it imposes an ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’” (quoting Sandin, 515 U.S. at
484)). Rather, these policies maintain medical discretion about what screening is
appropriate based on an inmate’s medical situation. See Docket No. 166-1 at 15, ¶¶ 67. Moreover, there is no evidence in the summary judgment record that plaintiff was
suspected of having cirrhosis during the period at issue, 2014. See Docket No. 179 at
4-6.4
3. Unobjected to Rulings
As for the unobjected to portions of the Second Recommendation, the Court has
reviewed those portions of the Second Recommendation to satisfy itself that there is
“no clear error on the face of the record.”5 Fed. R. Civ. P. 72(b), Advisory Committee
Notes. The Court finds no clear error with respect to the magistrate judge’s other
recommendations and will accept them. Accordingly, the Court will grant Mr. Roberts’
motion for summary judgment.
C. Order to Show Cause
The Court’s September 4, 2018 order to show cause noted that plaintiff had “not
filed a proof of service” for the unserved defendants and ordered plaintiff to show cause
4

With his objection, plaintiff filed a letter from a James R. Burton, Jr., MD, dated
November 14, 2017, stating that, based on review of plaintiff’s “records,” there was
“evidence of cirrhosis (low platelets, elevated bilirubin, low albumin).” Docket No. 206
at 11. He referred to this document, but did not file it, with a supplement to his
response to defendants’ motions. See Docket No. 180. Regardless, it does not show
that Mr. Roberts was aware of any suspicion that plaintiff had cirrhosis in 2014.
5

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).
16

why they should not be dismissed pursuant to Fed. R. Civ. P. 4(m). Docket No. 209.
Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is
filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Plaintiff’s September 14, 2018
“Objection” discusses his allegations against the unserved defendants but does not
discuss his failure to serve them or otherwise demonstrate good cause warranting an
extension beyond the ninety-day limit for service, which has long passed. See Docket
No. 214. The Court finds plaintiff has not shown good cause for an extension of time to
serve the unserved defendants and, therefore, the Court must dismiss the claims
against them without prejudice pursuant to Fed. R. Civ. P. 4(m). See Smith v. Glanz,
662 F. App’x 595, 598 (10th Cir. 2016) (unpublished) (finding dismissal appropriate
where, after an order to show cause issued, a pro se inmate failed to show good cause
for not serving the defendants within the time limit prescribed by Fed. R. Civ. P. 4(m)).
D. Challenges to the Protective Order
In light of the Court’s resolution of all of plaintiff’s claims, plaintiff’s challenges to
the magistrate judge’s protective order are moot. The Court will overrule plaintiff’s
objections and deny as moot his motion for review. See Docket Nos. 200, 201, 211. 6

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Even if plaintiff’s challenges to the protective order were not moot, plaintiff fails
to show that he sought the requested documents while discovery was allowed or to
show good cause to reopen discovery. See Docket No. 113 (ordering discovery to
close August 4, 2017); Docket No. 185 (plaintiff’s discovery requests filed January 18,
2018); Fed. R. Civ. P. 16(b)(4).
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IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 204] filed on July 17, 2018 is ACCEPTED. It is further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 205] filed on July 19, 2018 is ACCEPTED. It is further
ORDERED that the Motion for Summary Judgment From Defendants Susan
Tiona, Karen Mitchell, David Gross, Richard Madrid, and Desiree Andrews [Docket No.
157] is GRANTED. It is further
ORDERED that the Motion for Summary Judgment [Docket No. 166] filed by
defendant Doug Roberts is GRANTED. It is further
ORDERED that, pursuant to Fed. R. Civ. P. 4(m), plaintiff’s claims against
defendants Jerry Steele, Patricia Headley, L. Mortin-Earl, and Kathy M. Wiley, NP, are
DISMISSED without prejudice. It is further
ORDERED that Plaintiff’s Rebuttal to Defendants [sic] Objections/Responses to
Plaintiff’s Request for Production of Documents [Docket No. 200] and Plaintiff’s
Objection to Defendants [sic] Protective Order Regarding Plaintiff’s Production of
Documents [Docket No. 201], construed as objections to the m agistrate judge’s
February 23, 2018 Protective Order [Docket Nos. 189-190], are OVERRULED as moot.
It is further
ORDERED that plaintiff’s Motion for Review of Plaintiff’s Rebuttal to Defendants
[sic] Objection to Plaintiff’s Request for Production of Documents (P.O.D.) on

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03/23/2018, Also Plaintiff’s Objection to Defendants [sic] Protective Order Regarding
His Production of Documents Motion on 03/23/2018 [Docket No. 211] is DENIED as
moot. It is further
ORDERED that judgment shall enter against plaintiff Mark Walter Paulsen and in
favor of defendants Susan Tiona, Karen C. Mitchell, David R. Gross, Richard Madrid,
Desiree Andrews, and Doug Roberts. It is further
ORDERED that, within 14 days of the entry of this Order, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed.

DATED September 21, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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