Mwangi v. Norman et al

Filing 79

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).

Main v. Martin, Not Reported in F.Supp.2d (2009)
2009 WL 215404

2009 WL 215404
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Roy J. MAIN, Plaintiff,
v.
Cindy MARTIN and George Hubbs, Defendants.
Civil Action No. 06–cv–00232–WDM–MJW.
|
Jan. 22, 2009.
West KeySummary
1

Federal Civil Procedure
Tort cases in general
Genuine issue of material fact existed
as to whether the inmate had exhausted
available administrative remedies. Therefore,
the doctor defendant was not entitled to
summary judgment of the inmate's claims
regarding medical care. The inmate asserted
that he exhausted all administrative remedies
that were available to him. He argued that
case manager informed him that a grievance
procedure was not available to him and that
he was not required to go through the prison's
grievance procedure. Also, he argued that he
exhausted his remedies by writing letters to the
director of prisons and the directors of prison
medical. Fed.Rules Civ.Proc.Rule 56(c), 28
U.S.C.A.
7 Cases that cite this headnote

Attorneys and Law Firms
Roy J. Main, Canon City, CO, pro se.
Conor Daniel Farley, David James Nowak, White &
Steele, P.C., Denver, CO, Edward T. Farry, Jr., Attorney
at Law, Colorado Springs, CO, for Defendants.

ORDER ON MAGISTRATE
JUDGE RECOMMENDATIONS
MILLER, Senior District Judge.
*1 This matter is before me on two recommendations
by Magistrate Judge Michael J. Watanabe (Docket Nos.
135, 153). The first recommendation (Docket No. 135)
recommends that Plaintiff's motion for a temporary
restraining order (Docket No. 132) be denied. The
second recommendation (Docket No. 153) recommends
that Defendant Cynthia Martin's (“Martin”) motion for
summary judgment (Docket No. 110) be granted. Plaintiff
did not file timely objections to either recommendation
and, therefore, is not entitled to de novo review. 28 U.S.C.
§ 636(b); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d
1458, 1462 (10th Cir.1988). However, although technically
untimely, Plaintiff filed objections to Magistrate Judge
Watanabe's recommendation regarding Martin's motion
for summary judgment (Docket No. 154) one business day
late. 1 As they do not alter my ultimate conclusion and in
the interests of justice, I conclude that it is appropriate to
address Plaintiff's objections in this order. I must construe
Plaintiff's pleadings liberally and hold him to a “less
stringent standard” because he are proceeding pro se. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (“A pro
se litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers.” (citing Haines v. Kerner, 404 U.S.
519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972))). For
the reasons set forth below, I accept Magistrate Judge
Hegarty's recommendation as modified.

Background
Plaintiff initiated this action in January 2006 alleging
constitutional violations relating to the medical treatment
he received while incarcerated. Plaintiff has amblyopia
and diplopia 2 in his left eye which causes him to get
frequent and severe migraine headaches with symptoms
including dizziness, vomiting, and blurred vision.
According to the complaint, during his incarceration
Plaintiff went to Denver University Ophthalmology
(“DUO”) in 1995 and saw an ophthalmologist who
diagnosed the diplopia. The course of treatment
prescribed at this time was prism glasses and further

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Main v. Martin, Not Reported in F.Supp.2d (2009)
2009 WL 215404

testing. Plaintiff alleges that further testing was conducted
by Dr. Murphy at the State Hospital Ophthalmology
Clinic, but that he did not return to DUO after the testing.
Between 1997 and 2004, Martin, a licensed optometrist,
performed vision examinations for inmates housed in
Colorado state prison facilities. On June 25, 1998, Martin
performed a vision examination on Plaintiff. As treatment
for the amblyopia, Martin prescribed an eye-patch to be
worn over his left eye. Plaintiff alleges that although an
eye patch can be used to treat amblyopia, the eye patch
must be worn over the good eye, not the affected eye.
Plaintiff alleges that he spoke to his case manager on
the same day to file a grievance against Martin for her
failure to refer him to DUO, but that his case manager
told him that a grievance was not available for his
complaint. Although Plaintiff, therefore, did not file a
formal grievance against Martin, in July 1998 he sent
a letter to Jerry Gasko, the Department of Corrections
Director, generally complaining that he had not had his
eye surgery despite his debilitating symptoms. The letter
did not mention Martin by name but did complain that
the “eye examiner's” prescription to wear an eye patch
did not “fix the problem.” (Docket No. 3 at 21, July 1998
letter attached to Complaint.) It is unclear what, if any, 3
response was made to this letter.
*2 Martin evaluated Plaintiff again on August 21, 1998.
As a result of this evaluation, Martin referred Plaintiff
to “ophthalmology for another consult.” Plaintiff was
examined by Dr. Jay C. Tonne, M.D. on December
24, 1998, approximately four months after his second
evaluation by Martin. Dr. Tonne indicated that he was
“not enthusiastic” about surgery because “it would not
totally remove his double vision, but merely increase the
ROM, which might be diplopia free.” (Docket No. 3–
2, Dr. Tonne's notes attached to Complaint.) Plaintiff
was subsequently evaluated by Dr. Benton F. Murphy,
M.D. on January 28, 1999. In August 1999, Plaintiff wrote
a letter to Don Lawson, Director of Operations, again
complaining that he had not had eye surgery to correct
the amblyopia. Id. at 5, August 1999 letter attached to
Complaint. This letter does not mention Martin at all.
On behalf of Mr. Lawson, Defendant George Hubbs
(“Hubbs”) responded. The letter stated that Plaintiff's
condition could not be eliminated by surgery although the
symptoms may be decreased and that the doctors Plaintiff
had seen, in particular Dr. Tonne, did not recommend
surgery at this time. Id. at 6, September 1999 response

letter attached to Complaint. The letter further stated that
“[m]edical providers have sole authority and responsibility
for medical decisions” and that medical decisions “cannot
be ordered, changed, or denied from an administrative
standpoint.” Id. at 7. Finally, the letter indicated that
“[i]t is Doctor Tonne's recommendation that will largely
determine if CDOC will authorize surgery.” Id.
Next, Plaintiff saw Dr. Lynn Greenlee, M.D. on
November 4, 1999. Dr. Greenlee indicated that he
“suspect[ed] that [Plaintiff's] esotropia could be repaired”
but indicated that he did not have the required expertise to
perform surgery. Id. at 2, Dr. Greenlee's notes attached to
Complaint. He suggested that the visual fields testing be
redone and Plaintiff “be seen again at University Hospital
for repair of his esotropia.” Id. Plaintiff then saw Dr.
Jarvis Ryals, M.D. on October 8, 2002 and again for a
follow up on May 13, 2003 to determine whether the cause
of his eye problems was neurological. On October 15,
2003, Plaintiff saw “PA/Havens.” PA/Havens allegedly
asked Martin about the diplopia and Martin responded
“Mr. Main there is nothing else that can be done for
your eye problem.” (Compl.¶ 31.) Plaintiff alleges that PA/
Havens also asked Dr. Creany about Plaintiff's condition
and Dr. Creany referred Plaintiff to Dr. Baumgartner,
who told Plaintiff that he would perform surgery to
remedy the diplopia. Although it was not performed by
Dr. Baumgartner, Plaintiff did undergo surgery on his left
eye in 2005. Dr. Sands, after a consultation on November
16, 2004, performed the first of two surgeries on Plaintiff
on February 18 and 19, 2005. Dr. Sands performed the
second surgery on December 13, 2005. Plaintiff alleges
that although his eyesight is much better following the
two surgeries including no headaches and limited double
vision, he has permanently lost some of his vision.
*3 Plaintiff brought this action in January 2006 pursuant
to 42 U.S.C. § 1983, alleging violations of his Eighth
Amendment rights.

Discussion
1. Recommendation on Plaintiff's Motion
for a Temporary Restraining Order
On June 10, 2008, Plaintiff moved for a preliminary
injunction or a temporary restraining order “to ensure
that I receive my Legal and Medical Papers that the
Mail–Room Personnel has confiscated from me and to

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Main v. Martin, Not Reported in F.Supp.2d (2009)
2009 WL 215404

keep all future Legal and Medical Papers from being
confiscated.” (Docket No. 132 ¶ 1.) Plaintiff alleges that
on May 19, 2008 he mailed interrogatories to “PA/
Havens” at Fremont Correctional Facility but they were
returned to him on June 3, 2003 because PA/Havens
no longer worked at Fremont Correctional Facility. He
alleges that the mail room did not return the unanswered
interrogatories to him.
Magistrate Judge Watanabe issued a recommendation on
Plaintiff's motion on June 12, 2008 (Docket No. 135)
recommending that the motion be denied. Magistrate
Judge Watanabe determined that this Court has no
authority to enjoin the mail room personnel as they are not
parties to this action. He further determined that, even if
this Court did have such authority, Plaintiff failed to make
the required showing of necessity. Plaintiff did not file an
objection to this recommendation.
A temporary restraining order or preliminary injunction
is an “extraordinary remedy”, and, therefore, “the right to
relief must be clear and unequivocal.” Nova Health Sys.
v. Edmondson, 460 F.3d 1295, (10th Cir.2006) (internal
quotation marks omitted) (quoting SCFC ILC, Inc. v.
Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)). The
decision to grant injunctive relief is a matter of discretion.
See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d
1222, 1226 (10th Cir.2007) (noting that the Tenth Circuit
reviews denials of preliminary injunctions for abuse of
discretion). “To obtain a preliminary injunction, the
movant must show: (1) a substantial likelihood of success
on the merits; (2) irreparable harm to the movant if the
injunction is denied; (3) the threatened injury outweighs
the harm that the preliminary injunction may cause the
opposing party; and (4) the injunction, if issued, will not
adversely affect the public interest.” 4 Gen. Motors Corp.,
500 F.3d at 1226 (citing Greater Yellowstone Coalition
v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)). With
respect to irreparable harm “[t]he party seeking injunctive
relief must show that the injury complained of is of such
imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.' ” Heideman
v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003)
(emphasis in original) (quoting Wis. Gas Co. v. FERC,
758 F.2d 669, 674 (D.C.Cir.1985)). Irreparable harm
requires that the injury be “certain, great, actual ‘and not
theoretical.’ ” Id. (quoting Wis. Gas Co., 758 F.2d at 674).
“ ‘Merely serious or substantial’ harm is not irreparable
harm.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1267 (10th

Cir.2005) (quoting Prairie Band of Potawatomi Indians v.
Pierce, 253 F.3d 1234, 1250 (10th Cir.2001)).
*4 In this case, I agree with Magistrate Judge Watanabe
that this Court does not have the authority to bind
the mail room personnel with a preliminary injunction
or temporary restraining order. See Fed.R.Civ.P. 65(d)
(stating that a preliminary injunction or temporary
restraining order is binding on “(A) the parties; (B)
the parties' officers, agents, servants, employees, and
attorneys; and (C) other persons who are in active concert
or participation with anyone described in Rule 65(d)
(2)(A) or (B)”). Furthermore, I agree with Magistrate
Judge Watanabe that Plaintiff has failed to show the
type of imminent danger of irreparable harm necessary
to support the issuance of a preliminary injunction or
temporary restraining order. Heideman, 348 F.3d at
1189. Plaintiff has alleged merely an isolated incident
where the mail room determined that Plaintiff was not
entitled to his returned mail. This single occurrence is
not sufficient to demonstrate that a clear and present
need for an injunction to prevent irreparable harm. Id.
Therefore, I conclude that Magistrate Judge Watanabe's
recommendation should be accepted.

2. Recommendation on Defendant's
Motion for Summary Judgment
Martin moves for summary judgment on three grounds:
(1) failure to exhaust administrative remedies; (2) failure
to file the action within the statute of limitations; and
(3) failure to plead sufficient facts to support an Eighth
Amendment claim. Magistrate Judge Watanabe agreed
with all three bases for dismissal of Plaintiff's claims
against Martin.

a. Exhaustion of Administrative Remedies
First, Magistrate Judge Watanabe determined that
Plaintiff's claim against Martin is barred because Plaintiff
did not exhaust his administrative remedies prior to
filing this action. Plaintiff admits in his complaint that
administrative remedies were not exhausted for these
claims, but claims that his case manager told him that a
grievance was not available. (Docket No. 3 at 11.) After
this action was filed, Magistrate Judge Boyd N. Boland
ordered Plaintiff to show cause why his case should not be
dismissed for failure to exhaust administrative remedies.
(Docket No. 13.) Plaintiff responded, arguing that he was
told that the grievance procedures at his institution were

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Main v. Martin, Not Reported in F.Supp.2d (2009)
2009 WL 215404

not available to him for this claim. On May 25, 2006,
Senior Judge Zita L. Weinshienk dismissed the complaint
for failure to exhaust remedies (Docket No. 16). Judge
Weinshienk concluded:
The Court does not agree that Mr. Main's attempt to
file a grievance in 1998 excuses his failure to exhaust
administrative remedies with respect to his medical
treatment claim against Defendants Martin and Hubbs.
Even assuming Mr. Main could not have obtained
a grievance form from someone other than his case
manager in June 1998, the medical treatment claim
against Defendants Martin and Hubbs raises many
issues that had not even occurred when Mr. Main
alleges he attempted to file a grievance. Mr. Main
provides no explanation for his failure to file any
grievances regarding the ongoing failure to provide
adequate medical treatment for at least five years after
he attempted to file a grievance in 1998. He may not
exhaust “administrative remedies by, in essence, failing
to employ them.” See Jernigan v. Stuchell, 304 F.3d
1030, 1033 (10th Cir.2002).
*5 (Docket No. 16 at 3.) Plaintiff appealed the dismissal.
Based on the Supreme Court's decision in Jones v. Bock,
549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007),
decided after Judge Weinshienk's decision, the Tenth
Circuit reversed and remanded for further proceedings.
Jones determined that exhaustion of remedies was not a
heightened pleading requirement as previously held by the
Tenth Circuit, but rather, was an affirmative defense that
must be raised by a defendant. 127 S.Ct. at 921. Upon
remand and in compliance with Jones, Martin answered
the complaint and asserted the affirmative defense of
failure to exhaust administrative remedies.
Martin now moves for summary judgment based on
Plaintiff's failure to exhaust administrative remedies.
Magistrate Judge Watanabe concluded that summary
judgment was appropriate, stating essentially the same
reasons as Judge Weinshienk. (Docket No. 153 at
13.) Plaintiff objects to the recommendation arguing
that he exhausted all administrative remedies that were
“available” to him. He argues that because his case
manager told him in June 1998 that a grievance procedure
was not available to him he was not required to go through
the prison's grievance procedure. He also argues that he
exhausted his remedies by writing letters to the “Director
of the Prisons (Jerry Gasko)” 5 and the “Director of

Prison Medical (Don Lawson)” in July 1998 and August
1999. I agree with Plaintiff.
“The Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a), requires that ‘available’ administrative
remedies be exhausted prior to filing an action with
respect to prison conditions under § 1983.” Jernigan,
304 F.3d at 1032. Under Jones, exhaustion of remedies
must be raised as an affirmative defense and the “the
burden of proof for the exhaustion of administrative
remedies in a suit governed by the PLRA lies with the
defendant.” Roberts v. Barreras, 484 F.3d 1236, 1240–
41 (10th Cir.2007) (decided after Jones ). When prison
officials block a prisoner's access to the grievance process,
the administrative remedies are not “available” to the
prisoner and, therefore, do not need to be exhausted
prior to initiation of a section 1983 action. See Jernigan,
304 F.3d at 1032 (holding that the “failure [of prison
officials] to respond to a grievance within the time
limits ... renders an administrative remedy unavailable”);
see also Gonyea v. Mink, 206 F. App'x 745, 747 (10th
Cir.2006) (unpublished) 6 (“[A]dministrative remedies
may be deemed unavailable due to the obstruction of
the grievance process.” (citing Jernigan, 304 F.3d at
1032)); Baldauf v. Garoutte, 137 F. App'x 137, 141
(10th Cir.2005) (unpublished) (“[T]he plain meaning of
‘available’ indicates that if a prisoner is hindered from
utilizing the grievance procedure, then that grievance
procedure is not available.”); Garcia v. Taylor, 113 F.
App'x 857, 859 (10th Cir.2004) (unpublished) (“[R]efusing
a prisoner grievance forms could raise an inference that
the plaintiffs have exhausted ‘available’ administrative
remedies.”).
*6 In this case, Plaintiff attempted to file a grievance in
June 1998 after his first appointment with Martin. His case
manager, however, told him that a grievance was not an
available remedy for his complaint. He subsequently sent
two letters to prison officials complaining that he had not
been authorized to have eye surgery. One letter, the July
1998 letter, specifically mentioned the eye examiner's, i.e.
Martin's, prescription of a patch rather than authorization
of eye surgery. Given the denial of a grievance form and
Plaintiff's letters to prison officials, I conclude that Martin
has not met her burden of demonstrating that Plaintiff
failed to exhaust administrative remedies.
Magistrate Judge Watanabe concluded that Plaintiff's
attempt to file a grievance in 1998 did not excuse his

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Main v. Martin, Not Reported in F.Supp.2d (2009)
2009 WL 215404

failure to exhaust administrative remedies because, even
assuming he could not have obtained the grievance form
from someone other than his case manager, “the medical
treatment claim against Martin raises issues that had not
even occurred when [P]laintiff alleged he attempted to
file a grievance.” Although this statement is correct, with
respect to Martin, the essence of the claim, i.e., denial
of a referral to DUO for eye surgery, had occurred at
the time Plaintiff attempted to file a grievance. Indeed,
Plaintiff's claims against Martin occurring after July 1998
are essentially that she continued to do the same thing
that she did before July 1998, that is, to deny him
a referral to DUO for eye surgery. It is conceivable
that Plaintiff believed that a grievance would not be
available for Martin's continued inaction just as it was
not available for her initial inaction. I further note that
Plaintiff did attempt to resolve his dispute internally as
he sent two letters to prison officials complaining that
he was being denied eye surgery. Although Plaintiff may
well not have exhausted his administrative remedies, it is
Martin's burden to prove her affirmative defense and, in
this case, she has failed to do so. Martin has not presented
evidence demonstrating that a grievance procedure for
Martin's inaction was available to Plaintiff, that he could
have obtained a grievance form from someone other
than his case manager, or that the letters to prison
officials are not sufficient to exhaust his administrative
remedies. Therefore, I do not agree with Magistrate Judge
Watanabe that summary judgment is appropriate for
failure to exhaust administrative remedies.

b. Statute of Limitations
Second, Magistrate Judge Watanabe concluded that
Plaintiff did not file his action within the two year statute
of limitations. Magistrate Judge Watanabe determined
that Plaintiff's initiation of this action was indeed outside
the relevant statute of limitations because the limitations
period began to run in 1998—the time when Plaintiff
became aware of the injuries giving rise to this action.
Plaintiff objects to the recommendation by arguing (1)
that the statute of limitations is tolled while he is
incarcerated and (2) he did not know the full extent of his
injuries until 2005 when Dr. Sands determined surgery was
necessary. Martin responds that the statute of limitations
is not tolled while the plaintiff is incarcerated in the Tenth
Circuit. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th
Cir.2006). I agree with Magistrate Judge Watanabe.

*7 “Limitations periods in § 1983 suits are to be
determined by reference to the appropriate ‘state statute
of limitations and the coordinate tolling rules.’ ” Hardin
v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d
582 (1989). For suits brought in Colorado, the statute of
limitations is “two years from the time the cause of action
accrued.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th
Cir.2006). “[T]he accrual date of a § 1983 cause of action is
a question of federal law that is not resolved by reference
to state law” but rather is “governed by federal rules
conforming in general to common-law tort principles.”
Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 1095, 166
L.Ed.2d 973 (2007) (emphasis in original). “Under those
principles, it is the standard rule that accrual occurs when
the plaintiff has a complete and present cause of action,
that is, when the plaintiff can file suit and obtain relief.” Id.
(internal citations and quotations omitted); accord Fogle,
435 F.3d at 1258 (“[A] 1983 action ‘accrues when facts
that would support a cause of action are or should be
apparent.’ ” (quoting Fratus v. Deland, 49 F.3d 673, 675
(10th Cir.1995))). The action accrues “even though the full
extent of the injury is not then known or predictable.”
Wallace, 127 S.Ct. At 1097.
In Colorado, the statute of limitations is tolled only
when the person is “ ‘a minor under eighteen years
of age, a mental incompetent, or a person under other
legal disability.’ ” Fogle, 435 F.3d at 1258 (quoting
Colo.Rev.Stat. § 13–81–101(3)). “No Colorado court has
held that an imprisoned person fell into the ‘other legal
disability’ category.” Id. at 1259 n. 2. However, the
statute of limitations may also be equitably tolled “
‘when flexibility is required to accomplish the goals of
justice,’ such as ‘when plaintiffs did not timely file their
claims because of extraordinary circumstances or because
defendants' wrongful conduct prevented them from doing
so.’ ” Id. at 1258 (quoting Morrison v. Goff, 91 P.3d 1050,
1053 (Colo.2004)).
In this case, Plaintiff alleges that Martin violated his
Eighth Amendment rights when she did not refer him to
DUO after she performed vision evaluations on Plaintiff
in June and August 1998. Although Plaintiff further
asserts throughout his complaint that Martin did not
follow through with other doctors' recommendations that
he have surgery, the only medical interaction that Plaintiff
had with Martin was in 1998. I note that Plaintiff does
allege that PA/Havens discussed Plaintiff's case with
Martin in 2003, but this appears to be, at most, a

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Main v. Martin, Not Reported in F.Supp.2d (2009)
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consultation between medical professionals. Regardless,
all interactions between Plaintiff and Martin, including
the potential interaction in 2003, occurred more than two
years before Plaintiff filed this action and, therefore the
action was filed outside the limitations period.
Plaintiff's objections are insufficient to alter this
conclusion. First, Plaintiff's argument that the statute of
limitations was tolled while he was incarcerated is without
merit as Colorado does not recognize incarceration as
a encumbrance that tolls the statute of limitations. See
Fogle, 435 F.3d at 1259 n. 2 (“No Colorado court
has held that an imprisoned person fell into the ‘other
legal disability’ category.”). With respect to Plaintiff's
argument that the action did not accrue until he had
the surgeries in 2005 and the full extent of his injuries
could be determined, I disagree. An action accrues when
the plaintiff has a complete and present cause of action.
Wallace, 127 S.Ct. at 1095; accord Fogle, 435 F.3d at
1258. The action accrues “even though the full extent of
the injury is not then known or predictable.” Id. at 1097.
Therefore, even though the extent of the injuries caused
by an inaction on Martin's part may not have been known
until 2005, the fact remains that Plaintiff's action against
Martin accrued after Martin failed to refer Plaintiff to
DUO for eye surgery in 1998. In fact, Plaintiff himself
began complaining about Martin's inaction in 1998 as
evidenced by his request to file a grievance against Martin
in 1998 and his July 1998 letter to the Department of
Corrections Director referencing the failure to authorize
eye surgery. It is inapposite for Plaintiff to now argue
that his cause of action against Martin did not occur until
he was authorized to have surgery. Therefore, Magistrate
Judge Watanabe was correct in determining that this
action is untimely and barred by the statute of limitations.

c. Eighth Amendment
*8 Finally, Magistrate Judge Watanabe concluded
that the facts alleged by Plaintiff are insufficient to
demonstrate “deliberate indifference” by Martin as
required to sustain an Eighth Amendment claim against
her. Plaintiff does not object to this portion of the
recommendation. I have reviewed the legal authorities
relied on by Magistrate Judge Hegarty regarding the
Eighth Amendment and discern no error.
“For a prisoner to show that his lack of medical attention
violated his Eighth Amendment right to be free from
cruel and unusual punishment, he must show ‘unnecessary

and wanton infliction of pain.’ ” Duffield v. Jackson,
545 F.3d 1234, 1238 (10th Cir.2008) (citing Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976)); accord Kikumura v. Osagie, 461 F.3d 1269,
1291 (10th Cir.2006) (“[P]rison officials violate the Eighth
Amendment if their ‘deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary
and wanton infliction of pain.’ ” (citing Estelle, 429 U.S.
at 104)). The Tenth Circuit has described “deliberate
indifference” as follows:
Deliberate indifference' involves
both
an
objective
and
a
subjective component. The objective
component is met if the deprivation
is sufficiently serious. A medical
need is sufficiently serious if it is
one that has been diagnosed by a
physician as mandating treatment
or one that is so obvious that
even a lay person would easily
recognize the necessity for a doctor's
attention. The subjective component
is met if a prison official knows of
and disregards an excessive risk to
inmate health or safety.
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000)
(internal quotations and citations omitted)). “[N]egligent
diagnosis or treatment of a medical condition does
not constitute a medical wrong under the Eighth
Amendment ... as medical malpractice does not become
a constitutional violation merely because the victim is
a prisoner.” Duffield, 545 F.3d at 1238 (quotations
and citations omitted). Additionally, to demonstrate a
constitutional violation, Plaintiff must show “that there
is an ‘affirmative link’ between each defendant and the
constitutional deprivation.” Id. (citing Green v. Branson,
108 F.3d 1296, 1302 (10th Cir.1997)).
In this case, I agree with Magistrate Judge Watanabe
that Plaintiff's claims against Martin are insufficient to
demonstrate that she acted with deliberate indifference
to a serious medical need. First, Plaintiff has failed
to demonstrate that his medical need was sufficiently
serious. Although it is undisputed that Plaintiff was
diagnosed with amblyopia prior to his interactions with
Martin, there is no evidence that this diagnosis resulted
in a mandate for surgery at the time Martin evaluated
Plaintiff. In fact, it was seven years later and after many

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Main v. Martin, Not Reported in F.Supp.2d (2009)
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further medical consultations that surgery was deemed
medically appropriate. Second, Martin's inaction with
respect to Plaintiff's amblyopia does not rise to the
level of knowingly disregarding a medical risk. Martin
prescribed an eye patch to treat Plaintiff's symptoms and
recommended a consultation with an ophthalmologist.
Even assuming that this was not the best treatment
course, it was at most negligent medical care and,
therefore, insufficient to constitute an Eighth Amendment
violation. Finally, Plaintiff has failed to demonstrate an
affirmative link between Martin's inaction and his failure
to receive eye surgery until 2005. There is no evidence that
Martin had the medical knowledge or authority to order
eye surgery for Plaintiff. Furthermore, Martin referred
Plaintiff to an ophthalmologist for further evaluation
of his eye condition. Therefore, I agree with Magistrate
Judge Watanabe that summary judgment in favor of
Martin is appropriate.
*9 Accordingly, it is ordered:

1. The recommendation of Magistrate Judge Watanabe
(Docket No. 135), issued June 12, 2008, is accepted.
Plaintiff's Motion for a Preliminary Injunction and TRO
(Docket No. 132) is denied.
3. The recommendation of Magistrate Judge Watanabe
(Docket No. 153), issued September 16, 2008, is accepted
as modified.
4. Defendant Cynthia Martin's Motion for Summary
Judgment (Docket No. 110) is granted.
5. All claims against Defendant Cynthia Martin are
dismissed with prejudice.
6. All other claims remain pending.

All Citations
Not Reported in F.Supp.2d, 2009 WL 215404

Footnotes

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Pursuant to Fed.R.Civ.P. 72(b)(2), “[w]ithin 10 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and recommendations.” Therefore, in this
case Plaintiff's objections were required to be filed by September 30, 2008. See Fed.R.Civ.P. 6(a)(2) (stating that when
a time period is less than 11 days, intermittent Saturdays, Sundays, and legal holidays are excluded). However, when
service is made by mailing, as it was in this case, “3 days are added after the period would otherwise expire.” Fed.R.Civ.P.
6(d). Therefore, to be timely, Plaintiff's objections were due on or before October 3, 2008. Although not received by this
court until October 8, 2008, the objections are dated October 6, 2008, one business day after they were due.
Although these appear to be different conditions, Plaintiff uses the terms and the term “esotropia” interchangeably.
Amblyopia is defined as “poor vision caused by abnormal development of visual areas of the brain in response to abnormal
visual stimulation during early development.” Stedman's Medical Dictionary 16170 (27th ed.2000). Diplopia is defined as
“the condition in which a single object is perceived as two objects”—essentially double vision. Id. at 115680.
I do note that Plaintiff's August 1999 letter to Don Lawson, discussed infra, suggests that a response was made to this
letter.
The standards governing the issuance of a preliminary injunction and a temporary restraining order are very similar.
See Fed.R.Civ.P. 64(b) (A temporary restraining order may only enter when “specific facts in an affidavit or a verified
complaint show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party
can be heard in opposition.”).
In his objection, Plaintiff calls Mr. Gasko the “Director of Prisons”, but the letter itself is addressed to Jerry Gasko in his
capacity as the Department of Corrections Director. (See Docket No. 3 at 19, July 1998 letter attached to complaint.)
Although the Tenth Circuit does not allow citation to unpublished opinions for precedential value, unpublished opinions
may be cited for persuasive value. 10th Cir. R. 32.1.

End of Document

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