Paulsen v. Raemisch et al

Filing 52

ORDER. ORDERED that the Recommendation of United States Magistrate Judge 46 is ACCEPTED in part and REJECTED in part. ORDERED that Motion to Dismiss 30 filed by Kerry Baroni, Dave Booth, Garett Gebhart, Chris Teipel, and Christine Sturgeon is GRA NTED in part and DENIED in part as set forth in this order. Plaintiffs claims for monetary relief against Kerry Baroni, Dave Booth, Garett Gebhart, Chris Teipel, and Christine Sturgeon in their official capacities are dismissed. Plaintiff's clai m two, for violations of equal protection and due process under the Fourteenth Amendment, is dismissed. Plaintiff's claims against Kerry Baroni, Dave Booth, and Christine Sturgeon are dismissed. Signed by Judge Philip A. Brimmer on 03/29/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-00129-PAB-KMT
MARK WALTER PAULSEN,
Plaintiff,
v.
DAVE BOOTH, Executive Director, CDOC Drug and Alcohol Therapeutic Community,
GARETT GEBHART, BVCF TC Manager/Acting BVCF HSA,
CHRIS TEIPEL, BVCF TC Counselor,
KERRY BARONI, BVCF/Regional HSA,
DOUG ROBERTS, BVCF Health Services Administrator, and
CHRISTINE STURGEON, Nurse Practitioner,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya filed on February 27, 2017 [Docket No. 46]. The
magistrate judge recommends that the Court grant defendants’1 motion to dismiss
[Docket No. 30] in part. Specifically, the magistrate judge recommends dismissing
plaintiff Mark Walter Paulsen’s official capacity claims for monetary damages, his equal
protection claim, and his Eighth Amendment claims against Kerry Baroni, Dave Booth,
and Christine Sturgeon. Docket No. 46 at 19. Plaintiff requested an extension to file
objections to the Recommendation, which the Court granted in part. Docket Nos. 48,
49. Plaintiff filed timely objections on March 20, 2017. Docket No. 50. In light of

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Defendant Doug Roberts has not been served and did not join the motion.
Docket No. 30 at 1 n.1.

plaintiff’s pro se status, the Court will construe plaintiff’s objections liberally, but will not
advocate for him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. BACKGROUND
The Recommendation contains the relevant background facts, which will not be
repeated here. Docket No. 46 at 1-3.
II. STANDARD OF REVIEW
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, 1059 (10th Cir.
1996).
III. ANALYSIS
Plaintiff discusses all of the magistrate judge’s recommendations, even her
recommendations that certain of his claims not be dismissed, except for her
recommendation on plaintiff’s official capacity claims for monetary damages. Docket
No. 50. The Court will assume that plaintiff does not intend to object to the magistrate
judge’s recommendations in his favor, but assumes that he objects to the other
recommendations.
A. Eighth Amendment Deliberate Indifference
1. Kerry Baroni
The magistrate judge recommends that plaintiff’s claims against Ms. Baroni, the
prison’s health services administrator, be dismissed because her alleged denial of his

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grievances, “by itself without any connection to the violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983.” Docket No.
46 at 9 (quoting Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)). Plaintif f
objects that “Ms. Baroni could have and should have responded to the Set #1 step 1
grievance to ensure Plaintiff received chronic care for his hepatitis symptoms, but she
neglected or refused to do so.” Docket No. 50 at 2.
As the magistrate judge correctly found, an allegation that a prison official should
not have denied a grievance about an alleged violation is not sufficient to establish
personal participation in the underlying § 1983 violation. Gallagher, 587 F.3d at 1069
(“Because [plaintiff’s] only allegations involving these defendants relate to the denial of
his grievances, he has not adequately alleged any factual basis to support an
‘affirmative link’ between these defendants and any alleged constitutional violation.”).
Plaintiff’s objection points to no alleged personal involvement by Ms. Baroni beyond
denying his grievance. Accordingly, the Court will dismiss plaintiff’s claims against Ms.
Baroni.
2. Dave Booth
The magistrate judge recommends that plaintiff’s claim against Mr. Booth, the
executive director of the treatment program, be dismissed because plaintiff fails to
allege Mr. Booth was aware “when Plaintiff was diagnosed with Hepatitis C or that his
condition was deteriorating due to lack of treatment” and therefore does not allege any
facts showing Mr. Booth was aware of an excessive risk to plaintiff’s health. Docket No.
46 at 10-11. Plaintiff’s objection argues that Mr. Booth was aware of plaintiff’s
complaint that treatment had not yet started, but failed to act. Docket No. 50 at 2-3.
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While plaintiff has sufficiently alleged he had a serious medical condition and Mr.
Booth was aware his treatment was delayed, plaintiff does not plead any factual
allegations from which it is possible to infer that Mr. Booth was aware that a delay in
treatment presented an excessive risk to plaintiff’s health. Docket No. 1 at 9 (“Booth
knew about the serious medical condition Paulsen had (hepatitis C), that he was not
being treated and that it was likely the fault of Defendant Gebhart.”). Plaintiff’s
allegations are that Mr. Booth was aware that plaintiff filed a grievance that his
treatment had not been started, but there are no f actual allegations in plaintiff’s
complaint from which one could infer that Mr. Booth knew a delay in starting such
treatment would present an excessive risk to plaintiff’s health. Id. (“Booth advised
Paulsen that the time requirement for starting treatment was ‘SIX MONTHS’.”). Id.
Allegations that Mr. Booth was aware of plaintiff’s condition do not show that Mr. Booth
actually drew an inference that a delay in treatment would pose an excessive risk to
plaintiff’s health, as required to state a claim. Farmer v. Brennan, 511 U.S. 825, 837
(1994) (“[T]he 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.”). Accordingly, the Court will dismiss plaintiff’s claim against Mr. Booth.
3. Christine Sturgeon
The magistrate judge recommends that plaintiff’s claim against Ms. Sturgeon, a
nurse practitioner, be dismissed because it is based on her lack of awareness that
plaintiff had completed the prerequisites for treatment rather than deliberate
indifference. Docket No. 46 at 13-14. Plaintiff objects that Ms. Sturgeon knew from his

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lab results that his condition was worsening, but did not perform a biopsy necessary
before treatment could begin. Docket No. 50 at 5.
The Court finds that plaintiff’s allegations do not show deliberate indifference to
his serious medical needs. Where a “medical professional knows that his role in a
particular medical emergency is solely to serve as a gatekeeper for other medical
personnel capable of treating the condition, and if he delays or refuses to fulfill that
gatekeeper role due to deliberate indifference, it stands to reason that he also may be
liable for deliberate indifference from denying access to medical care.” Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). Plaintif f alleges his treatment was
delayed, but he does not allege that the delay was the result of indifference to his
medical needs. Rather, he alleges that Ms. Sturgeon scheduled the biopsy and then
cancelled the appointment because she thought he was ineligible for treatment due to
not having completed the prerequisite program. Docket No. 1 at 14. These allegations
do not show “an act (or omission) of indifference to a serious risk that is voluntary, not
accidental,” Farmer, 511 U.S. at 840, or otherwise show an “infliction[] of punishment”
that can lead to liability under the Eighth Amendment. Id. at 841. At best, plaintiff has
alleged that Ms. Sturgeon’s mistaken belief that he was ineligible for treatment led to a
delay, not that she delayed his medical treatment out of indifference or otherwise
voluntarily allowed him to be harmed. Such allegations are not enough to state an
Eighth Amendment claim, and the Court will therefore dismiss plaintiff’s claim against
Ms. Sturgeon.

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B. Fourteenth Amendment Equal Protection
The magistrate judge recommends that plaintiff’s equal protection claim be
dismissed because it “does not contain any factual allegations that would plausibly
suggest similarities between the medical needs of Plaintiff and any other inmates who
completed the [treatment] Program.” Docket No. 46 at 15. Plaintiff objects that he
does not know other inmates’ medical needs because such information is confidential,
but that “there are many offenders in [the treatment program] with Hep-‘C’ almost all if
not all less severe than Paulsen’s.” Docket No. 50 at 6. He then names two other
inmates and states that one inmate was treated within three months of arriving and the
other was “ignored by medical [and] died a slow and painful death.” Id.
As the magistrate judge found, plaintiff’s allegation that he was treated differently
from other inmates in relation to the hepatitis C treatment protocol is not supported by
factual allegations that indicate other similarly situated individuals were treated
differently. Plaintiff alleges that the protocol was not followed in his case, but he does
not plead any allegations regarding how other similarly situated inmates were treated.
Docket No. 1 at 15-16. While he objects that he cannot know the medical situations of
other inmates, he then contradictorily names two other inmates and discusses their
medical situations and treatments. Docket No. 50 at 6. To the extent he seeks to use
such information to bolster the allegations in his complaint, he cannot do so. See
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (“The nature of a Rule 12(b)(6)
motion tests the sufficiency of the allegations within the four corners of the complaint
after taking those allegations as true.”). Even if the Court could consider the allegations

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plaintiff makes in his objection, they would not help plaintiff establish an equal
protection claim. He does not provide sufficient facts from which the Court could infer
the individuals are similarly situated to plaintiff, i.e., that they are similar to plaintiff “‘in
every relevant respect.’” Docket No. 46 at 15 (quoting Templeman v. Gunter, 16 F.3d
367, 371 (10th Cir. 1994)). 2 Plaintiff fails to allege facts showing that he was
“intentionally treated differently from others similarly situated.” Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). Therefore, the Court will dismiss his equal protection
claim.
C. Unobjected-to Rulings
As for the unobjected-to portions of the Recommendation, in the absence of a
proper objection, the district 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 v. Arn, 474 U.S. 140, 150 (1985) (“It 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”). In this matter, the Court has reviewed the unobjected-to portions of

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Plaintiff also objects that three other named inmates attended the law library
more than him “without harassment” and that he was denied prison jobs. Docket No.
50 at 5. These statements are unrelated to any of the allegations in his equal
protection claim, Docket No. 1 at 15-16, and he provides no information showing that
those inmates are similarly situated; for example, he does not claim that they needed
medical treatment.
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the 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 one such error with respect to plaintiff’s Fourteenth Amendment
due process claim. The magistrate judge recommends that defendants’ motion be
denied with respect to this claim because “Defendants have not established Plaintiff’s
lack of liberty interest in obtaining Hepatitis C treatment under the CDOC’s protocol.”
Docket No. 46 at 17. By doing so, the magistrate judge put the burden on defendants
to show that plaintiff did not have a liberty interest. However, defendants have invoked
qualified immunity to plaintiff’s constitutional claims. Docket No. 30 at 14. It is
therefore plaintiff’s burden, not defendants’ burden, to show that his liberty interest was
“clearly established.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001) (citation
omitted). “Ordinarily,” to carry this burden of showing clearly established law “there
must be a Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the plaintiff
maintains.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)
(quoting Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)).
Plaintiff points to no authority that defendants’ alleged failure to adhere to the
administrative regulations concerning the hepatitis C treatment program violated his
liberty interests protected under the Fourteenth Am endment. See Docket No. 1 at 1516; Docket No. 42; Docket No. 50 at 7-8. Therefore, plaintiff has failed to meet his

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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).
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burden to show that his clearly established constitutional rights were violated.
Accordingly, the Court will dismiss plaintiff’s Fourteenth Amendment due process claim
because of defendants’ qualified immunity.
The Court finds no clear error with respect to the magistrate judge’s other
recommendations and will accept them. Accordingly, the Court will dismiss plaintiff’s
claims for monetary damages against defendants in their official capacities and deny
defendants’ motion with respect to plaintiff’s Eighth Amendment claims against Garett
Gebhart and Chris Teipel and plaintiff’s First Amendment Retaliation claim.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 46] is ACCEPTED in part and REJECTED in part. It is further
ORDERED that Motion to Dismiss [Docket No. 30] filed by Kerry Baroni, Dave
Booth, Garett Gebhart, Chris Teipel, and Christine Sturgeon is GRANTED in part and
DENIED in part as set forth in this order. Plaintiff’s claims for monetary relief against
Kerry Baroni, Dave Booth, Garett Gebhart, Chris Teipel, and Christine Sturgeon in their
official capacities are dismissed. Plaintiff’s claim two, for violations of equal protection
and due process under the Fourteenth Am endment, is dismissed. Plaintiff’s claims
against Kerry Baroni, Dave Booth, and Christine Sturgeon are dismissed.

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DATED March 29, 2017.
BY THE COURT:

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

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