Eldridge v. Osage

Filing 49

ORDER: 44 Report and Recommendation is affirmed and adopted; 31 Motion to Dismiss is granted, by Judge Christine M. Arguello on 02/27/2017. (swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-02744-CMA-KMT
CLINTON T. ELDRIDGE,
Plaintiff,
v.
A. OSAGIE, P.A.,
G. SANTINI, M.D., and
P. LAIRD, R.N.,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE KATHLEEN M. TAFOYA

This matter is before the Court on review of the Report and Recommendation by
United States Magistrate Judge Kathleen M. Tafoya (Recommendation) (Doc. # 44),
issued on January 23, 2017, and recommending that this Court grant Defendants’
Motion to Dismiss Plaintiff Clinton T. Eldridge’s Eighth Amendment claims against them
(Doc. # 31). The Recommendation is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b). For the following reasons, the Court adopts the
Recommendation and grants Defendants’ Motion.
I.

STANDARD OF REVIEW

Mr. Eldridge objects to the Recommendation in its entirety. Federal Rule of Civil
Procedure 72(b)(3) thus requires that this Court conduct a de novo review of the issues.
In so doing, the Court “may accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the magistrate judge with instructions.”
Id. Any arguments raised for the first time in objections are deemed waivable and need
not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996).
II.

BACKGROUND

In his Amended Complaint, Mr. Eldridge, an inmate at the Administrative
Maximum facility of the Federal Correctional Complex in Florence, Colorado, argues
that for the past ten years, Defendants A. Osagie, a physician assistant, and G. Santini,
a physician, have denied him treatment for HCV in violation of his rights under the
Eighth Amendment. (Doc. # 12 at 4–5, 7.) He also contends that Defendant P. Laird, a
Bureau of Prisons (BOP) Regional Director, violated his Eighth Amendment rights by
rejecting a requested medical transfer to a facility that would provide better HCV
treatment. (Id. at 8–10.) Defendants contend that Mr. Eldridge has failed to sufficiently
plead these claims and that his Amended Complaint should therefore be dismissed
under Federal Rule of Civil Procedure 12(b)(6). 1
III.

LAW GOVERNING A RULE 12(b)(6) MOTION TO DISMISS

Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint for failure to
state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in
support of his claim that would entitle him to relief. Golan v. Ashcroft, 310 F. Supp. 2d
1215, 1217 (D. Colo. 2004). Dismissal under Rule 12(b)(6) may also be based on the

1

The Amended Complaint initially included an Eighth Amendment claim based on an alleged
failure to provide medical treatment related to a musculoskeletal disorder (Doc. # 12 at 12–14),
but that claim has since been dismissed pursuant to 28 U.S.C. § 1915 (Doc. # 44).
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lack of a cognizable legal theory. Id. at 1217. In reviewing a motion to dismiss, courts
take all well-pleaded allegations in the plaintiff’s complaint as true and construe the
allegations in the light most favorable to plaintiff. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).
However, a litigant’s “conclusory allegations without supporting factual averments
are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove
facts that have not been alleged, or that a defendant has violated laws in ways that a
plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council
of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997) (court may not “supply additional factual allegations to
round out a plaintiff’s complaint”).
Mr. Eldridge appears pro se in this matter. The Court, therefore, “review[s] his
pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Mr.
Eldridge’s pro se status does not, however, entitle him to the application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Moreover, the Court
may not “construct arguments or theories for [Mr. Eldridge] in the absence of any
discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th
Cir. 1991).

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IV.

MR. ELDRIDGE’S EIGHTH AMENDMENT CLAIMS

The Eighth Amendment protects against the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. This protection encompasses “deliberate
indifference” by prison officials to a prisoner’s serious medical needs. Howard v. Waide,
534 F.3d 1227, 1235 (10th Cir. 2008) (citing Estelle v. Gamble, 429 U.S. 97, 105
(1976)). Specifically:
Deliberate indifference to serious medical needs of prisoners constitutes
the “unnecessary and wanton infliction of pain” proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.
Estelle, 429 U.S. at 104–05 (internal citation omitted).
An Eighth Amendment claim for deliberate indifference involves “a two-pronged
inquiry, comprised of an objective component and a subjective component.” Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006).
A. THE OBJECTIVE COMPONENT
The objective component requires a showing that the prisoner’s medical need is
“sufficiently serious” to be cognizable under the Eighth Amendment. Hudson v.
McMillian, 503 U.S. 1, 9 (1992); Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). This standard is met if the medical need was “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.” Ramos v. Lamm, 639
F.2d 559, 575 (10th Cir. 1980) (quotation and citation omitted). The question is not
limited to whether the inmate’s symptoms render a medical need sufficiently serious, but
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also extends to whether the potential harm to the inmate is sufficiently serious. Mata v.
Saiz, 427 F.3d 745, 752 (10th Cir. 2005). The Tenth Circuit and other courts in this
district have held that untreated HCV, without more, does not satisfy the objective
component because HCV “progresses slowly, typically over the course of decades.”
Whitington v. Moschetti, 423 F. App’x 767, 773 (10th Cir. 2011); see Vasquez v. Davis,
No. 14-cv-01433-WJM-CBS, 2015 WL 6662921, at *5 (D. Colo. Nov. 2, 2015); Wright v.
Hodge, No. 12-cv-CMA-MJW, 2015 WL 1408753 at *6 (D. Colo. March 25, 2015).
Defendants acknowledge that HCV constitutes a serious medical problem but
argue that Mr. Eldridge has not alleged sufficient facts demonstrating that his condition
is “sufficiently serious to be constitutionally significant,” or that it has progressed to a
point that requires medical attention beyond what Defendants are presently providing.
(Doc. # 31 at 5.)
Mr. Eldridge argues that his HCV is sufficiently serious, as depicted by his
allegedly “off the charts” liver enzyme levels. (Doc. # 48 at 2.) He highlights the 2001
evaluation of prison consultant gastroenterologist Dr. Michael B. Wooten, who found Mr.
Eldridge’s liver functioning and enzyme levels to be normal. Nonetheless, Dr. Wooten
recommended testing Mr. Eldridge’s liver function annually and providing a follow-up
“percutaneous liver biopsy in perhaps one to two years.” (Doc. ## 12 at 17; 1-2 at 11.)
Mr. Eldridge contends that his liver has continued to deteriorate since 2001—adding
that his “liver function will never be normal again” and will likely “cause his death.” (Doc.
# 48 at 8; Doc. # 12 at 11, describing his condition as “a lifelong handicap that can
cause death.”) In support, Mr. Eldridge has submitted his own handwritten

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documentation of his alleged platelet counts between 2008 and 2016, and his alleged
liver enzyme levels—aspartate aminotransferase (AST) and alkanine aminotransferase
(ALT) levels—between 2000 and 2016. The Court cannot rely on Mr. Eldridge’s selfcreated medical charts, none of which are supported by any of the official medical
records or physician notes before this Court. 2 Indeed, Mr. Eldridge’s personal belief or
self-diagnosed ailment, standing alone, cannot sustain an Eighth Amendment claim.
Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (citing Aswegan v. Henry, 49
F.3d 461, 464–65 (8th Cir. 1995); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994);
see also Hall, 935 F.2d at 1110 (A litigant’s “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief can be based.”).
Moreover, the official medical records submitted by Mr. Eldridge 3 indicate
otherwise—that Mr. Eldridge’s condition has not risen to the level of “sufficiently
serious.” Records reveal that, in December 2014, Defendant Osagie informed Mr.
Eldridge that his Aspartate Aminotransferase-to-Platelet Ratio Index (APRI) was below
1.0, which, according to the Federal BOP priority levels, does not meet the criteria for
the HCV treatment Mr. Eldridge is requesting. (Doc. ## 1-2 at 2; 31-1 at 7–8, 12).
Defendant Osagie added, “You will continue to be monitored.” (Doc. # 1-2 at 2).
Records from October 21, 2015 reflect an APRI level of 1.09, which is still in the low
priority level for HCV treatment. (Doc. # 1-2 at 3.)

2

If Mr. Eldridge has official medical records corresponding to his handwritten tables, he has not
submitted them to this Court. It is unclear to this Court why he would chose to create and
submit his own tables, rather than official prison reports.

3

Mr. Eldridge has submitted medical records from 2001, 2014, and 2015.

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Further, nowhere in his Complaint or Objections does Mr. Eldridge allege how his
allegedly high enzyme levels render his condition sufficiently serious to support an
Eighth Amendment violation, other than to state that sometime in the future, his liver
may cause his death. He points to no medical diagnosis supporting this assertion and
no obvious, easily recognizable reason for medical attention beyond what he is already
receiving. See Whitington, 423 F. App’x at 773 (holding that plaintiff failed to show
substantial harm based on a delay in HCV treatment because there was no evidence
suggesting substantial progression of liver disease). That, as Mr. Eldridge states, “HCV
is a serious disease that can result into a number of medical problems from cancer of
the liver, liver failure, and death” does not mean that Mr. Eldridge is currently suffering,
or will ever suffer, from HCV at that magnitude. (Doc. # 48 at 8.) See Roe v. Elyea,
631 F.3d 843, 848 (7th Cir. 2011) (“One-third of persons with chronic HCV infection
show no evidence of liver disease.”).
It appears that Mr. Eldridge simply disagrees with Defendants’ current
assessment of his condition and the likelihood of future harm, but mere disagreement is
insufficient to support an Eighth Amendment violation. See Olson v. Stotts, 9 F.3d
1475, 1477 (10th Cir. 1993) (an inmate’s difference of opinion regarding his condition or
medical treatment does not generally support a claim for cruel and unusual
punishment).
Based on this Court’s review of the parties’ arguments and the medical evidence
submitted, the Court concludes that Mr. Eldridge has not pled enough facts to support
that his chronic HCV meets the criteria for objective harm under the Eighth Amendment.

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B. THE SUBJECTIVE COMPONENT
Under the subjective component, the defendant must have a “sufficiently
culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted);
see also Self, 439 F.3d at 1230–31. In other words, the plaintiff must establish that the
defendant “knew he faced a substantial risk of harm and disregarded that risk, by failing
to take reasonable measures to abate it.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th
Cir. 1999) (internal citation and quotation omitted). “Unlike the objective component, the
symptoms displayed by the prisoner are relevant to the subjective component of
deliberate indifference. The question is: ‘were the symptoms such that a prison
employee knew the risk to the prisoner and chose (recklessly) to disregard it?’”
Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (quoting Mata, 427 F.3d at
753). This is a high standard. “[N]egligent failure to provide adequate medical care,
even one constituting medical malpractice, does not give rise to a constitutional
violation.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999); Vasquez,
2015 WL 6662921, at *7.
Here, the Court’s primary inquiry is whether Defendants’ responses to Mr.
Eldridge’s medical needs were proportional to the symptoms that Defendants knew
about or should have known. See Self, 439 F.3d at 1233–34 (no deliberate indifference
where prisoner presented with cough, fever, and other non-specific symptoms and
prison doctor provided medication consistent with a respiratory infection).
Medical records from 2001, 2014, and 2015, as well as Mr. Eldridge’s own notes
reflecting his alleged enzyme levels between 2001 and 2016, demonstrate that

8

Defendants have been monitoring Mr. Eldridge’s condition as Dr. Wooten
recommended and according to BOP policy. (Doc. ## 1-2 at 2; 31-1 at 7–8). The
records reveal that the prison has been checking, and will continue to monitor, among
other things, Mr. Eldridge’s AST and corresponding APRI levels. According to Federal
BOP policy, Mr. Eldridge’s levels are in the lowest priority category for treatment. (Doc.
# 31-1 at 7–8, 12.)
Nonetheless, Mr. Eldridge appears to be challenging Defendants’ chosen course
of treatment, arguing that he should be provided different tests and given another liver
biopsy. 4 He bases this challenge on his own understanding of his liver enzyme levels,
which, as mentioned, is unsupported by the medical evidence that he has provided this
Court. To sufficiently plead an Eighth Amendment claim, Mr. Eldridge must allege
“deliberate refusal to provide medical attention, as opposed to a particular course of
treatment”; he has not met this standard. Fleming v. Uphoff, et. al., No. 99-8035, 2000
WL 374295, at *2 (10th Cir. April 12, 2000) (internal quotations omitted); Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (“[W]hether one course of treatment is
preferable to another [is] beyond the [Eighth] Amendment’s purview.”). To the extent
that Mr. Eldridge is arguing that Defendants have improperly delayed medical treatment,
i.e. by not giving him a liver biopsy, that allegation, without more, is also insufficient to
support an Eighth Amendment claim. See Sealock v. Colorado, 218 F.3d 1205, 1210
(10th Cir. 2000) (“Delay in medical care only constitutes an Eighth Amendment violation
where the plaintiff can show that the delay resulted in substantial harm.”). Finally, Mr.

4

Records reflect that Mr. Eldridge was given a liver biopsy in 2001.
9

Eldridge has not alleged that Defendants have done anything to worsen or exacerbate
his HCV. C.f. Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that plaintiff
sufficiently stated a cause of action under the Eighth Amendment by alleging that
defendants had, with deliberate indifference, exposed him to levels of environmental
tobacco smoke that posed an unreasonable risk of serious damage to his future health).
Viewing Mr. Eldridge’s factual allegations and supporting documentation in the
light most favorable to him, the Court cannot conclude that Mr. Eldridge has sufficiently
pled that the Defendants knew or should have known that he faced a substantial risk of
harm and deliberately disregarded it. In other words, Mr. Eldridge has failed to
sufficiently plead the subjective prong of an Eighth Amendment claim.
Because Mr. Eldridge has not sufficiently plead either prong of the deliberate
indifference inquiry, the Court agrees with Magistrate Judge Tafoya that his Eighth
Amendment claims against Defendants should be dismissed.
C. MEDICAL TRANSFER REQUEST
Mr. Eldridge also asserts an Eighth Amendment claim against Defendant Laird
based on Defendant Laird’s alleged denial of Mr. Eldridge’s medical transfer “for HCV
and all of [his] medical problems.” (Doc. # 12 at 8.) Mr. Eldridge does not specify what
constitutes his other “medical problems,” and with regard to his HCV, the Court agrees
with Magistrate Judge Tafoya that Mr. Eldridge’s medical transfer claim is premised on
this Court finding that the Eighth Amendment warrants treatment not currently being
provided to him. Because this Court already concluded otherwise, his Eighth
Amendment medical transfer claim against Defendant Laird necessarily fails.

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V.

CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiff Clinton T. Eldridge’s Objections to the Recommendation (Doc. # 48)
are OVERRULED.
2. The Report and Recommendation of Magistrate Judge Tafoya (Doc. # 44) is
AFFIRMED AND ADOPTED as an Order of this Court.
3. Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (Doc. # 31) is
GRANTED.
DATED: February 27, 2017

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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