York v. Federal Bureau of Prisons, The

Filing 83

ORDER granting 49 Motion for Summary Judgment and Memorandum Briefin Support Thereof, by Magistrate Judge Kathleen M. Tafoya on 3/22/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 16–cv–01754–KMT
DWIGHT D. YORK, known as Malachi Z. York,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER

This matter comes before the court on “Defendant’s Motion for Summary Judgment and
Memorandum Brief in Support Thereof” (Doc. No. 49 [Mot.], filed August 8, 2017). Plaintiff
filed his Response on October 3, 2017 (Doc. No. 55 [Resp.]), and Defendant filed its Reply on
October 27, 2017 (Doc. No. 63 [Reply]).
STATEMENT OF CASE
Plaintiff, a federal prisoner confined to the United States Penitentiary, Administrative
Maximum (“ADX”) in Florence, Colorado, asserts one claim for injunctive relief for the
defendant’s alleged failure to provide him with specific medical care in violation of the cruel and
unusual punishment clause of the Eighth Amendment. (See generally, Doc. No. 38, Second Am.
Compl. [Am. Compl.], filed January 4, 2017.) Plaintiff alleges that he suffers from a lifethreatening condition, Hereditary Angioedema (“HAE”), as well as hypertension (high blood
pressure), vision and dental problems, and that Defendant’s care does not meet minimum

constitutional standards, placing his health and life in jeopardy. (Id. at 2, 5, 36–37.) Plaintiff
seeks affirmative injunctive relief from the BOP in the form of additional medical care for his
angioedema in accordance with “community standards of care.” (Id. at 37.) Plaintiff also seeks
a declaratory judgment that Defendant has violated his Eighth Amendment right to be free from
cruel and unusual punishment. (Id.)
PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF
UNDISPUTED MATERIAL FACTS
In his Response, Plaintiff responds to each of Defendant’s statements of undisputed material
facts by stating it is (1) admitted, (2) denied, or (3) “is not a material fact and should be stricken.”
(See Resp. at 1–7.) Pursuant to Federal Rule of Civil Procedure 56(c),
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1). A party also “may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
Moreover, “[i]f a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to it . . . .”
Fed. R. Civ. P. 56(e)(2)–(3).

2

Finally, the court should accept as true all material facts asserted and properly supported in
the summary judgment motion. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). “[O]n a
motion for summary judgment, it is the responding party’s burden to ensure that the factual dispute is
portrayed with particularity, without depending on the trial court to conduct its own search of the
record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (quotations and citation
omitted). The court is “not obligated to comb the record in order to make [Plaintiff’s] arguments for
him.” Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000).
Accordingly, to the extent Plaintiff “denies” facts presented or requests that they be stricken
as immaterial and yet fails to provide any evidence in support of the denial or request to strike which
contradicts Defendants’ evidence, the court considers the facts identified by Defendant as unopposed.
Fed. R. Civ. P. 56(e)(2). Nevertheless, although certain facts are deemed admitted, the court still
must decide whether the defendant is entitled to judgment as a matter of law based upon the material
facts asserted and properly supported in the Motion and applicable legal principles. See Fed. R. Civ.
P. 56(a), (c), (e)(3); Reed, 312 F.3d at 1195–96.
DEFENDANT’S RESPONSE TO PLAINTIFF’S ADDITIONAL
DISPUTED OR UNDISPUTED MATERIAL FACTS
In his Response, Plaintiff sets forth 58 paragraphs of additional disputed or undisputed
material facts. (See Resp. at 8–13 [Pl.’s Facts].) Defendant disputes the statements of Harvey Cox
and Dr. Busse, two of Plaintiff’s expert witnesses, because they are not sworn or in the form of an
affidavit. (Reply at 7, ¶ 52; 8, ¶ 56.) Defendant also disputes the statements of Mr. Cox because
Plaintiff has not provided a necessary foundation for him to testify as an expert. (Id. at 8, ¶ 52.)
Finally, Defendant disputes the statement of Dr. Busse because it is not presented to a reasonable
degree of medical certainty. (Reply at 8, ¶ 57.)

3

A.

Sworn Affidavits
The federal system abandoned the requirement for a sworn or certified copy of a paper or a

formal affidavit in 2010. See Fed. R. Civ. P. 56, Advisory Committee Notes to 2010 Amendment,
Subdivision (c) (“[This requirement] . . . is omitted as unnecessary given the requirement in
subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record. A
formal affidavit is no longer required.”). Moreover, the Tenth Circuit has stated that evidence
supporting a motion for summary judgment
need not be submitted in a form that would be admissible at trial. Parties may, for
example, submit affidavits in support of summary judgment, despite the fact that
affidavits are often inadmissible at trial as hearsay, on the theory that the evidence
may ultimately be presented at trial in an admissible form. Nonetheless, the content
or substance of the evidence must be admissible. Thus, for example, at summary
judgment courts should disregard inadmissible hearsay statements contained in
affidavits, as those statements could not be presented at trial in any form.
Agro v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (emphasis in
original, internal citations and quotations omitted). It is only necessary for the party submitting the
evidence to show “that it will be possible to put the information, the substance or content of the
evidence, into an admissible form.” Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (citation
and internal quotation marks omitted).
Because the written reports of Plaintiff’s experts set out opinions that are anticipated to be
offered in testimony at trial, there is no bar to considering those opinions here. The court will,
however, disregard any statements recorded in the expert reports that would not be otherwise
admissible at trial. See Agro, 452 F.3d at 1199.
B.

Foundation
This court’s practice standards require “[a] party objecting to the admissibility of opinion

testimony by an expert witness [to] file a written motion seeking its exclusion.” See Practice

4

Standards (Civil Cases), § III.J. “The deadline for filing all such motions shall be the same date as
set for the filing of dispositive motions.” (Id.) Mr. Cox’s report is dated February 1, 2017, and was
provided to Defendant on February 3, 2017. (See Doc. No. 44.) Thus, at this time, Defendant’s
objection to the inclusion of Mr. Cox as an expert witness or to the inclusion of his report is
overruled.1
C.

Reasonable Degree of Medical Certainty
Defendant argues that Dr. Busse’s opinion is not presented to a reasonable degree of medical

certainty and that she only hypothesizes that Plaintiff could suffer from an airway attack. (Reply at
8, ¶ 57.)
Federal Rule of Evidence 702 “imposes on the district court a gatekeeper function to ‘ensure
that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’ ” United
States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that function, the court must “assess
the reasoning and methodology underlying the expert’s opinion, and determine whether it is both
scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212,
1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592–93). Defendant has not seriously called into
question the “reasoning and methodology underlying [Dr. Busse’s] opinion,” Dodge v. Cotter Corp.,
328 F.3d 1212, 1221 (10th Cir. 2003). Rather, Plaintiff questions the validity of the opinion in the
guise of attacking its admissibility.

1

Defendant cites Squires v. Goodwin, 829 F. Supp. 2d 1041 (D. Colo. 2011), in support of his
contention that the court, when reviewing summary judgment, may look to determine the basis
for an expert opinion and analyze the adequacy of its foundation. (See Reply at 8, ¶ 52.)
However, in Squires, the court did not analyze the sufficiency of the expert on summary
judgment, but rather on a properly-filed motion to strike the expert under Rule 702. 892 F. Supp.
2d at 1046-47.
5

“While expert opinions ‘must be based on facts which enable [the expert] to express a
reasonably accurate conclusion as opposed to conjecture or speculation, . . . absolute certainty is not
required.’ ” Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003)
(citation omitted). See also Warren v. Tastove, 240 F. App’x 771, 773 (10th Cir. 2007) (requiring
that “an opining physician . . . offer an opinion with a reasonable degree of medical certainty” and
noting that “a hunch, even an educated hunch, is not enough”). Nevertheless, the fact that a
physician may not be able to testify to a reasonable degree of medical certainty goes to the weight a
testimony, not to its admissibility. In re Swine Flu Immunization Prod. Liab. Litig., 533 F. Supp.
567, 578 (D. Colo. 1980) (citing United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977).
To the extent Defendant seeks to undermine the correctness of Dr. Busse’s opinion, it may do
so through normal means at trial. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.”). Defendant’s objection to Dr.
Busse’s opinion at this stage, however, is overruled.
UNDISPUTED FACTS2
General Background and BOP Procedures

1.

The BOP maintains electronic medical records for each inmate, which are referred

to as BEMR (Bureau Electronic Medical Records). (Mot., Ex. A, Decl. of Stacy Collins, Health
Services Administrator [“HAS”], ¶ 4.)
2

Some of the factual assertions related to Plaintiff’s medical history and medical records in his
Statement of Additional Disputed or Undisputed Material Facts are made without citation to
specific pages of an exhibit. This is contrary to Rule 56(c), which requires a party asserting a
fact to cite to particular parts of materials in the record. Fed. R. Civ. P.(c)(1)(A). As noted
supra, it is not the court’s obligation “to comb the record in order to make [Plaintiff’s] arguments
for [him].” Mitchell, 218 F.3d at 1199. As such, to the extent Plaintiff asserts facts that cannot be
easily verified by citation to the record, the court has not included them as undisputed facts.
6

2.

Medical care for inmates, including Plaintiff, is governed by Bureau Program

Statement 6031.04, Patient Care. (Id., ¶ 8.)
3.

The BOP seeks to provide health care to inmates in accordance with proven standards

of care without compromising public safety concerns inherent to the agency’s overall mission. (Id.,
Attach. 4, Program Statement PS 6031.04, at 2.)
4.

The BOP provides five major levels of care that guide medical providers on how to

triage inmates’ needs. (Id.)
5.

First, there are conditions that are “medically necessary – acute or emergent.” (Id. at

5.) These can include such conditions as myocardial infarction, hemorrhage or stroke, and other
conditions “that are of an immediate, acute or emergent nature, which without care would cause rapid
deterioration of the inmate’s health, significant irreversibly loss of function, or may be lifethreatening.” (Id.)
6.

The next level of classification includes those conditions that are “medically

necessary – non-emergent.” (Id. at 6) These are conditions that are not immediately life threatening
but that could lead to significant deterioration or irreversible damage in the absence of treatment; this
category can include such conditions as HIV, cancer, or chronic conditions like diabetes, heart
disease, or serious mental illness. (Id.) Plaintiff is classified as a Care Level 2. (Ex. A, ¶ 32.)
7.

The next level is “medically acceptable – not always necessary.” (Id.) This level

includes conditions that are considered elective procedures, when treatment may improve the
inmate’s quality of life. (Id.) Relevant examples in this category can include joint replacement or
treatment of non-cancerous skin conditions. (Id.)
8.

Finally, there are two lower categories of care: “limited medical value” and

“extraordinary.” (Id.)

7

9.

At the ADX, Plaintiff has multiple avenues to access medical care (daily if needed).

(Id., ¶ 9; Attach. 4 at 21.) Health Services providers at the ADX include Mid-Level Providers,
Registered Nurses, Emergency Medical Technicians, and physicians. (Id.; Attach. 4 at 14.) Medical
units have an EKG machine, blood-pressure monitor, and Automated External Defibrillators. (Id.;
Ex. A, ¶ 9.) Each facility, including the ADX, is equipped to provide primary health care, dental
care, and emergency care and basic first aid to an inmate-patient. (Id., ¶ 17; Attach. 6, Complex
Supplement FCC 6031.01(4)g, Urgent Medical and Dental Services, § 4.)
10.

Depending on a patient’s needs and subjective complaints, a provider can assess and

examine a patient in his cell or at other locations. (Id., ¶ 10; Attach. 5, Complex Supplement FCC
6031.01(3)g, Triage/Access to Care, § 2.) If the examination is in a cell, the outer door can be
opened so that the provider may speak to the inmate patient face-to-face while also taking vital signs,
such as blood pressure readings. (Id.; Attach. 5, § A.1.d.)
11.

Health Services staff make daily rounds of the housing units at the ADX to attend to

inmates’ medical needs. (Id., ¶ 11; Attach. 5, § 6.A.1.b.) Health Services staff walk down all ranges
and verify the well-being of each inmate. (Id.) Inmates may address medical issues during these
rounds. (Id.) Health Services staff will determine if the issue must be addressed at that time or if the
issue may be deferred to a later time. (Id.) At the ADX, these rounds will start during morningwatch, based on the availability of open ranges. (Id.) At the ADX, all routine sick call appointments
will be conducted in the unit unless clinical staff determines care must be continued in the Health
Services Unit examination areas. (Id.; § A.1.d.)
12.

If the patient requires a clinical encounter that is more extensive in nature or more

extended in duration, the patient will be scheduled for escort to an exam room in the respective
housing unit. (Id., ¶ 12; § 6.A.1.c.) That examination room is contained within the housing unit, and

8

it includes a gurney and other items one would typically find in the exam room of a primary care
physician outside the correctional environment. (Id., § 12.)
13.

A patient can be seen in the Health Services Department, away from the housing

units, if even more invasive or complex treatment is required, including dental services, laboratory
services, and radiology services, among others. . (Id., ¶ 13; Attach. 4 at 3.) If the Health Services
Department at ADX Florence cannot provide the requisite level or degree of care for the patient’s
specific condition or complaint, the inmate can be referred to an outside specialist. (Id., ¶ 14; Attach
4 at 7.) Where an inmate presents with a condition possibly requiring outside consultation, a body
called the Utilization Review Committee (URC) considers the need for that medical procedure or
evaluation. (Id., ¶ 15; Attach. 4 at 7.) The Clinical Director chairs the URC, which includes the
HSA, the medical trip coordinator, and the medical provider, among others. (Id.) The URC reviews
and decides whether to refer the inmate to an outside medical, surgical, or dental specialist. (Id.)
Any care that is considered “medically necessary – acute or emergent” does not require URC review
or approval prior to the treatment being provided. (Id.; Attach. 4 at 8.) As chair of the committee,
the Clinical Director is the final authority for all URC decisions. (Id.) The Clinical Director will
notify inmates in writing when URC decisions are made with a copy of the notification placed in the
inmate’s health record. (Id.)
14.

An inmate can write an Inmate Request to Staff (a “copout”) to request medical care.

(Id., ¶ 16; Attach. 4 at 21.) An inmate can refer medical concerns or questions to any one of the
many staff members who conduct rounds on a daily basis: this includes, but is not limited to, Health
Services, Executive Staff, Correctional Services, and the correctional officers in the unit. (Id., ¶ 16.)
An inmate also can request to be seen during sick call by the medical provider. (Id.)

9

15.

Inmates with chronic medical conditions, are also seen at the Chronic Care Clinic at

designated intervals. (Id., ¶ 18; Attach. 4 at 18.) At that appointment, the clinician devotes time
solely to those chronic conditions for which the inmate is treated. (Id., ¶ 18.)
16.

Before a pharmacist at ADX dispenses medication to an inmate, the pharmacist will

review it prospectively for adverse interactions with other drugs, contraindications, and the inmate’s
drug allergies, among other things. (Id., ¶ 19.) The patient is educated on any side effects of the
prescription, the proper dosage and frequency, and the medical need to continue with the medication.
(Id.)
17.

ADX is equipped and staffed to provide 24-hour medical, dental and mental health

care. (Id., ¶ 20; Attach. 6, § 4.) A team of “first responders” is established for each shift, with
documented training in first aid and CPR. (Id.) All health care practitioners, the HSA, AHSAs
(Assistant Health Services Administrator), and Lieutenants maintain CPR and AED certification.
(Id.)
18.

If a medical emergency occurs during regular hours, Health Services staff are alerted

and notified by telephone or via radio. (Id., ¶ 21; § 4.B.1.) Health Services staff retrieve the
emergency medical bag, and immediately report, within four-minutes, to the location of the
emergency, as directed by the first responder, Lieutenant, or Control Room Officer. (Id.) Immediate
triage and quick assessment of illness or injury is performed at the site of the emergency. (Id.) First
responders initiate first aid, administer CPR, and utilize an AED, as necessary. (Id.) The inmate
may be transported via wheelchair, stretcher/gurney, or emergency medical vehicle to the Health
Services Urgent Care Room. (Id.) If the inmate’s condition requires immediate transfer to a local
community hospital emergency department, medical staff notify the Operations Lieutenant, or
Control Room Officer, and the Emergency Medical System is activated by calling 911. (Id.) In

10

responding to a medical emergency, staff are trained in a four-minute response protocol. (Id., ¶ 22; §
4.) Staff use the AED machine to ascertain the patient’s readings and can administer oxygen if
needed. (Id.)
19.

An ADX inmate interacts frequently with medical staff or other employees who can

quickly refer the inmate’s concern to Health Services. (Id., ¶ 23.) This level of staff and inmate
interaction is highest during the day shift, from approximately 7 a.m. to 4 p.m. (Id.; Attach. 6, §
4.B.1.) During off-hours, however, an ADX inmate still has opportunity to access medical care
despite the fact that he is confined to the cell overnight and without a cellmate. (Id.; § 4.B.2.)
20.

All ADX cells are equipped with a duress button that the inmate may press if he is

experiencing a medical emergency. (Id., ¶ 24.) This button is on the wall of his cell where he can
easily reach it. (Id.) If the inmate engages his duress button, correctional officers in the unit will
respond immediately to determine the nature of the inmate’s condition. (Id.)
21.

At ADX, officers conduct rounds every thirty minutes, which entails physically

walking down the range to make sure all inmates are alive and well, and in no apparent distress. (Id.)
After hours, there also an on-call physician. (Id., ¶ 25; Att. 4 at 2.) This Medical Duty Officer
(MDO) is on-call 24 hours a day, seven days a week, for emergencies or clinical consultations. (Id.,
¶ 25; Attach. 6, § 4.A.3.) While the MDO is not physically at ADX, he or she can be reached
telephonically if there is a medical emergency. (Id.) The physician on-call schedule and contact
information are given to Health Services staff as well as Correctional Services staff. (Id.; § 4.A.3.)
22.

On-site medical coverage at the ADX is provided from 6 a.m. to 10 p.m., including

weekends and holidays. (Id.; § 4.A.2.) If an inmate requires emergent care after hours, the MDO is
notified by Correctional Services of the nature of the medical complaint, and the MDO will provide
further instructions (i.e., activate EMS, telephone triage, or defer examination until normal business

11

hours). (Id., ¶ 26; §§ 4.A.3, 4.B.2.) In the event the MDO is unavailable, and an imminent loss of
life or limb situation occurs, the Operations Lieutenant is authorized to immediately call 911, so
timely emergent care can be provided. (Id.; § 4.B.2.) FCC Florence has a contract with American
Medical Response (“AMR”) ambulance service, which is based in nearby Florence, Colorado, and
can respond within several minutes. (Id., ¶¶ 22, 26.) An AMR ambulance is cleared to enter the
facility quickly to minimize response time; it proceeds directly to the rear gate where the patient can
be transferred into the ambulance. (Id., ¶ 26.)
23.

With respect to Plaintiff’s diagnosis of Idiopathic Angioedema, Health Services staff

are capable of administering emergent doses of necessary medications to stabilize an inmate,
including the emergent administration of epinephrine or prednisone, as indicated. (Id., ¶ 27.)
24.

If Plaintiff were to experience a future, acute angioedema attack, ADX Health

Services is prepared to care for him promptly and appropriately, as described in previous paragraphs
detailing the ADX’s emergent care protocol. (Id., ¶ 35.) If Plaintiff requires medical care that
exceeds what ADX can provide, he could be designated to a Federal Medical Center. (Id., ¶ 36;
Attach. 7, Program Statement 6270.01, Medical Designations and Referral Services for Federal
Prisons.) A medical re-designation is made “for inmates with an acute medical, surgical, or
psychiatric condition, or for those inmates who have chronic care needs that cannot be addressed” at
the current facility. (Attach. 7 at 5.) The protocol is that most acute care, if it requires
hospitalization, should be provided in a community hospital near the BOP facility. (Id. at 6.)
25.

Medical staff at ADX could request that Plaintiff be transferred to a Bureau Medical

Referral Center (MRC) upon weighing the following considerations: his prognosis for continued
long-term treatment and rehabilitation; whether the necessary treatment required is not available in
the local community; whether ADX lacks the health care resources to provide the necessary follow-

12

up treatment; and whether there are overriding case management and/or security needs for the
transfer. (Ex. A, ¶ 36; Attach. 7 at 6.).
26.

Plaintiff’s current medical concerns do not warrant a medical re-designation to a

Bureau MRC, and Plaintiff can be properly cared for at ADX Florence. (Id.)
Plaintiff’s Diagnoses
27.

On September 10, 2003, BOP Regional Director R.E. Holt indicated that Plaintiff

received care in the Chronic Care Clinic in the United States Penitentiary, in Georgia, to monitor his
pre-existing medical diagnosis of childhood asthma and acquired angioedema. (Resp., Ex. C.) From
his arrival at the ADX, Plaintiff self-reported a history of angioedema. (Resp., Ex. A, ¶ 28; Attach.
1, at 91–92.) Plaintiff has self-reported swelling of his lips, face, throat or other areas at numerous
times during his incarceration at ADX. (Attach. 1 at 5, 11, 13, 17–18, 23, 130, 216, 225, 231, 374,
378, 437, 516, 546, 551, 597, 602, 609, 613.) In many of those encounters, Plaintiff was
administered antihistamines that improved his symptoms. (Id.)
28.

A previous Clinical Director at FCC Florence ordered tests which confirmed that

Plaintiff does not have HAE. (Id. at 216–219; 258, 259, 261, 263.) The Clinical Director informed
Plaintiff of these findings on or around October 28, 2010. (Id. at 264.)
29.

Plaintiff’s current medical conditions include, but are not limited to, hypertension,

myopia, astigmatism, cataracts, and angioneurotic edema (non-inflammatory swelling). (Id. at 645.)
The latter condition was described by Dr. Wilson on September 28, 2012. (Id. at 330–36, 645.)
Plaintiff is currently prescribed 10 milligrams of amlodipine once daily, and 50 milligrams of
metoprolol tartrate twice daily. (Ex. A, ¶ 31.) Both medications are prescribed to treat his
hypertension. (Id., Attach. 1 at 652–53.)

13

30.

Plaintiff is able to purchase over the-counter antihistamines from the commissary,

including loratadine, chlorpheniramine, and Nasacort. (Ex. A, ¶ 31.)
31.

As with any medical provider, Health Services clinicians at the ADX must obtain

informed consent from Plaintiff prior to providing treatment. (Id., ¶ 33.) Plaintiff frequently refuses
treatment. (Id.; Attach. 1 at 131–33, 377, 397, 412, 414, 432, 481, 488, 516, 537, 539, 550, 564, 576,
581, 583, 586, 682, 685, 689.)
Specific Medical Incidents Related to Angioedema and Related Responses
32.

On June 14, 2007, at approximately 2:30 a.m., Plaintiff suffered from an angioedema

attack in which there was swelling to Plaintiff’s upper and lower lips on the left side. (Resp., Ex. B
at 17.) Plaintiff notified the correctional officer who notified a medical provider. (Id.) Plaintiff was
not provided assistance for fifteen minutes as the medical provider was assisting another inmate.
(Id.)
33.

On February 21, 2013, Plaintiff told a medical provider he “passed out” in his jail cell

because of his angioedema. (Id. at 378.) Plaintiff was evaluated and did not receive any treatment or
medication for angioedema. (Id.)
34.

On June 27, 2014, Plaintiff complained to a medical provider of swelling of his upper

lip, itching all over his body, the appearance of hives, and tightness in his throat for two days due to
stress. (Id. at 437.) Plaintiff advised that he had not taken his blood pressure medication as he was
afraid it might aggravate his angioedema symptoms. (Id.)
35.

On July 3, 2016, Plaintiff was found on the floor of his cell not responding to staff for

about a minute. (Id. at 551.) His lips were swollen but he had no swelling to his tongue or throat.
(Id.)

14

Defendant’s Expert
36.

The medical evidence supports a finding that Plaintiff suffers from a mild form of

Idiopathic Angioedema/Urticaria, rather than Hereditary Angioedema. (Ex. B, Decl. of Alan L.
Schocket, M.D., ¶¶ 5, 12.)
37.

Plaintiff’s episodes of swelling are often short-lived (hours to a day) sometimes

resolve without treatment and consistently respond to treatment with antihistamines like Benadryl.
(Id., ¶ 11.) Plaintiff’s intermittent Idiopathic Angioedema/Urticaria is responsive to antihistamines
and epinephrine. (Id., ¶ 12.)
38.

The relatively infrequent occurrence and rapid resolution of Plaintiff’s episodes with

little or no sequelae support the adequate treatment afforded him by the federal prison system. (Id., ¶
14.) Plaintiff was treated with and provided access to antihistamines in the prison facility. (Id., ¶ 15.)
These medications are the cornerstone of treatment for Idiopathic Angioedema and Urticaria. (Id.)
39.

The episodes of swelling Plaintiff has experienced in the past have resolved

following treatment. (Id., ¶ 17.)
40.

The care that Plaintiff has received from the Bureau of Prisons for his Idiopathic

Angioedema has been appropriate to manage his disease. (Id., ¶ 20.)

STANDARD OF REVIEW
Summary judgment is appropriate if “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). The moving party bears the initial burden of showing an absence of evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “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, Inc. v. City & County of Denver,
15

36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party
may not rest solely on the allegations in the pleadings, but must instead designate “specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P.
56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper
disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party.
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S.
at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary
judgment stage of litigation, a plaintiff’s version of the facts must find support in the record.
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d
at 1312. “[F]acts must be viewed in the light most favorable to the nonmoving party only if
there is a ‘genuine’ dispute as to those facts.” Scott, 550 U.S. at 380.

16

ANALYSIS
A.

Eighth Amendment
The Eighth Amendment to the United States Constitution provides that “cruel and

unusual punishments” shall not be inflicted. U.S. Const. amend. VIII. Punishments that
“involve the unnecessary and wanton infliction of pain” violate this provision. Gregg v.
Georgia, 428 U.S. 153, 173 (1976). Because “[a]n inmate must rely on prison authorities to treat
his medical needs,” Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court has held that
“deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. at 104 (quoting Gregg, 428
U.S. at 173). Generally, the court’s analysis of Plaintiff’s Eighth Amendment claims involves
both an objective and subjective component. Wilson v. Seiter, 501 U.S. 294, 298–99 (1991).
The objective component is met if the harm suffered is sufficiently serious. Id. at 298. The
subjective component requires an inquiry into the state actor’s culpability. Mata v. Saiz, 427
F.3d 751, 753 (10th Cir.2005).
1.

Medical Conditions Other than Angioedema

At the outset, the court notes that in his Response, Plaintiff asserts he suffers from
“asthma, back pain, dental issues, high blood pressure, hypertension, myopia, astigmatism,
cataracts, and has experienced epilepsy, seizures and convulsions.” (Resp. at 15.) However,
there is no mention of back pain, epilepsy, seizures, or convulsions in Plaintiff’s Second
Amended Complaint, and no allegations that Defendant has failed to treat any of these
conditions. (See Am. Compl.) Moreover, Plaintiff has not provided any expert opinions or
evidence that he suffers from or that Defendant has failed to treat these conditions.

17

Furthermore, though Plaintiff does allege in his Second Amended Complaint that he
suffers from dental issues for which the defendant has delayed dental treatment (see id., ¶¶ 134–
35, 142–43, 165–66), he suffers from hypertension that is poorly controlled by the defendant (id.,
¶¶ 6, 32, 58, 92), and he suffers from vision problems (id., ¶¶ 6, 157), again he fails to provide
any expert opinions or evidence that these are sufficiently serious medical problems or that
Defendant has failed to provide treatment for them.
Finally, Plaintiff alleges in his Second Amended Complaint that he suffers from
“occasional asthma.” (Id., ¶ 32.) However, Dr. Busse addressed Plaintiff’s asthma only to
indicate it is “less of an [i]ssue tha[n] his angioedema based upon the infrequency of his asthma
symptoms. However, his care can be optimized by having visits with spirometry to access his
lung function and also a Rx for a rescue inhaler such as Albuterol.” (Resp., Ex. G at 2.) Plaintiff
has filed to provide any evidence that Plaintiff’s asthma is a sufficiently serious condition for
which he has not received treatment.
Defendant is entitled to summary judgment on Plaintiff’s claims related to asthma, back
pain, dental issues, high blood pressure, vision problems, epilepsy, seizures, and convulsions.
2.

Angioedema
a.

Objective Component

Defendant argues Plaintiff is unable to establish that he suffers from a serious medical
condition to meet the objective component of a deliberate indifference claim. (Mot. at 17–18.)
“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

18

recognize the necessity for a doctor’s attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980) (internal quotations omitted).
It is undisputed that Plaintiff has not been diagnosed with Hereditary Angioedema, but
that he, instead, has Idiopathic Angioedema. Defendant argues that
Plaintiff’s medical records do not contain evidence that he has suffered any acute,
life-threatening episode of Idiopathic Angioedema. Plaintiff’s reported symptoms
are relatively mild and amenable to treatment to resolve the episodes. Plaintiff’s
Idiopathic Angioedema does not require daily medication.
(Id. [internal citations omitted].) However, Dr. Busse, Plaintiff’s expert, opines that Ideopathic
Angioedema “can be potentially life-threatening” (Resp., Ex. H [Busse Rebuttal Op.] at 2.)
Defendant disputes Dr. Busse’s opinions on the bases that the symptoms Plaintiff
attributes to angioedema are self-reported and that “Plaintiff is unable to point to any entry in his
medical record that he was diagnosed with a recent, life-threatening, emergent condition” to
which BOP medical staff have not responded or ameliorated his medical condition with
treatment. (Reply at 9–10.) Indeed, most of the medical records Plaintiff cites in support of his
claims that his angioedema is a life-threatening condition either do not mention angioedema or
are attributed to Plaintiff’s other medical conditions. (See Resp., Statement of Additional
Disputed or Undisputed Material Facts [Pl.’s Facts], ¶¶ 7–11, 15–19, 24, 28–31, 33, 35.)
However, Plaintiff’s medical records show that on July 3, 2016, he was found on the floor of his
cell not responding to staff for about a minute. (Id. at 551.) Though Plaintiff did not have
swelling to his tongue or throat, he did have swollen lips, which the medical provider attributed
to angioedema. (Id at 551–52.)
The court finds that there are disputed issues of fact regarding whether Plaintiff has a
sufficiently serious medical need.
19

b.

Municipal Liability and Objective Standard

Defendant also argues that, as an entity, it cannot be liable for the acts of its employees
unless it has the subjective, culpable intent required to hold it liable for an Eighth Amendment
violation. (See Mot. at 17–18.) Though Defendant is incorrect about the standard under which
Eighth Amendment deliberate indifference claims asserting municipal liability is viewed,
Defendant is correct that it cannot be held liable for the claims asserted by the plaintiff.
While a subjective standard applies to prison condition claims against an individual
official, an objective standard applies to claims against municipalities because “considerable
conceptual difficulty would attend any search for the subjective state of mind of a governmental
entity, as distinct from that of a governmental official.” Farmer v. Brennan, 511 U.S. 825, 841–
42 (1994); see Barney v. Pulsipher, 143 F.3d 1299, 1307 n.5 (10th Cir. 1998). Vicarious liability
is not a permissible avenue for relief against a governmental entity under 42 U.S.C. § 1983.
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010); Cacioppo v. Town of Vail,
Colo., 528 F. App’x 929, 931 (10th Cir. 2013). Liability may be imposed only “for [the entity’s]
own unconstitutional or illegal policies and not for the tortious acts of its employees.” Barney,
143 F.3d 1299, 1307 (10th Cir. 1998). The Supreme Court, in Monell v. Department of Social
Services, 436 U.S. 658, 691–692 (1978), stated a plaintiff must identify “a government’s policy
or custom” that caused the injury. The policy or custom must be shown to be the direct cause or
“moving force” behind the constitutional violations. City of Canton v. Harris, 489 U.S. 378,
389, 109 (1989).
“[W]hen an official municipal policy itself violates federal law, issues of culpability and
causation are straightforward; simply proving the existence of the unlawful policy puts an end to

20

the question.” Barney, 143 F.3d at 1307 (citing Bd of Cnty. Comm’rs v. Brown, 520 U.S. 397,
404 (1997). However, in situations where “the p.olicy at issue is lawful on its face and the
municipality therefore has not directly inflicted the injury through its own actions . . . ‘rigorous
standards of culpability and causation must be applied to ensure that the municipality is not held
liable solely for the actions of its employee.’ ” Id. (quoting Brown, 520 U.S. at 405).
In [Harris], the Supreme Court held that municipal liability based on a policy of
inadequate training requires proof of the municipality’s “deliberate indifference”
to its inhabitants—i.e., the failure to train must “reflect [ ] a ‘deliberate’ or
‘conscious’ choice by a municipality.” [489 U.S.] at 389. The deliberate
indifference standard may be satisfied when the municipality has actual or
constructive notice that its action or failure to act is substantially certain to result
in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm. See Brown, 520 U.S. at [407]. In most instances,
notice can be established by proving the existence of a pattern of tortious conduct.
Id. [at 407–08]. In a “narrow range of circumstances,” however, deliberate
indifference may be found absent a pattern of unconstitutional behavior if a
violation of federal rights is a “highly predictable” or “plainly obvious”
consequence of a municipality’s action or inaction, such as when a municipality
fails to train an employee in specific skills needed to handle recurring situations,
thus presenting an obvious potential for constitutional violations. Brown, 520
U.S. at [409]; Canton, 489 U.S. at 390 & n. 10.
Barney, 143 F.3d at 1307–08.
Here, Plaintiff does not allege that any specific policy violates a federal law or that
Defendant had actual notice of an alleged constitutional violation. Rather, Plaintiff alleges
Defendant “is ‘consistent’ at providing ‘inconsistent’ medical care” for Plaintiff’s serious
medical condition of Angioedema by acting “pursuant to federal custom, policy, or practice in
their acts and omissions pertaining to [Plaintiff’s] inadequate medical care . . . .” (Am. Compl.,
¶¶ 12, 185.) Though entirely unclear, Plaintiff’s claim appears to be that Defendant had
constructive notice of the alleged constitutional violations. In his response, Plaintiff argues that
Defendant failed to
21

(1) consistently provide medical staff and medical treatment; (2) employ medical
staff that have the capability of providing Plaintiff with adequate medical
treatment; (3) establish an emergency plan or protocol to assist with responding to
medical emergencies of Plaintiff; (4) retain the appropriate medications for
emergency treatment; and (5) acknowledge Plaintiff’s symptoms as an
angioedema and provide treatment thereof.
(Resp. at 17.) The court addresses each of Plaintiff’s argument in turn.
i.

Providing Medical Staff and Medical Treatment

Plaintiff argues Defendant’s medical staff failed to be consistently available to treat
Plaintiff during his serious medical emergencies, as there is no medical staff available for
emergency treatment overnight and there is not a physician in ADX at all times. (Id. at 18.) In
his Statement of Additional Disputed or Undisputed Material Facts, Plaintiff provides the
following examples of four delays in treatment:
1. Plaintiff states that on March 27, 2007, he activated the duress button in his cell as he
experienced severe chest pain and discomfort to his arms. (Resp., Pl.’s Facts, ¶ 9.)
Plaintiff contends that, upon the correctional officer’s arrival, he was found
unconscious in his cell and had to be resuscitated. (Id., ¶ 10.) However, the record to
which Plaintiff cites shows that Plaintiff denied losing consciousness. (See Mot., Ex.
A, Attach. 1 at 22.) There is no indication in the record that Plaintiff had been found
unconscious or that he had to be resuscitated. (See id.)
2. On June 14, 2007, at approximately 2:30 a.m., Plaintiff suffered from an angioedema
attack in which there was swelling to Plaintiff’s upper and lower lips on the left side.
(Resp., Ex. B at 17.) Plaintiff was not provided assistance for fifteen minutes as the
medical provider was assisting another inmate. (Id.)
3. Plaintiff states that on January 1, 2010, he experienced chest pain and notified a
correctional officer, but medical treatment was delayed as the medical provider was
treating another inmate. (Resp., Pl.’s Facts, ¶¶ 16–17.) The record to which Plaintiff
cites indicates that when the provider arrived, Plaintiff “was sleeping [and] he states
that he had chest pain earlier but it has gone away now and he feels fine.” (Mot., Ex.
A, Attach. 4 at 1.) There is no indication in the record as to how long Plaintiff waited
to be seen by a medical provider.
4. Plaintiff states on January 29, 2010, he experienced chest pain and activated the
duress button, but again his treatment was delayed as the only health technician on
duty was assisting another inmate. (Resp., Pl.’s Facts, ¶¶ 18–19.) However, the
medical record shows that, though he was not seen by a medical provider
immediately, officers checked on him several times. (Mot., Ex. A, Attach. 5 at 26.)
22

Again, there is no indication in the record as to how long Plaintiff waited to be seen
by a medical provider.
The court notes that Plaintiff does not provide any examples of when his medical care has
been delayed since January 2010. Thus, Plaintiff has provided no factual support for his
contention in his response that “from 2011 through 2015, there was only one physician assistant
at ADX who was responsible for providing treatment to over 400 inmates,” and, thus, during that
time period, when Plaintiff had medical emergencies his care was delayed or denied due to the
unavailability of medical staff. (Resp. at 18.) Plaintiff also has provided no factual support for
his contention that his medical care has been delayed since 2015. Finally, Plaintiff has provided
no factual support for his contention that he is not able to receive emergency treatment overnight.
Plaintiff’s allegation that medical attention was delayed for unknown periods of time on
four occasions from 2007 to the present does not constitute a pattern of tortious conduct
sufficient to subject the defendant to liability. See Blueberry v. Comanche Cnty. Facilities Auth.,
672 F. App’x 814, 817 (10th Cir. 2016) (evidence of three incidents of sexual misconduct that
occurred within about four years of the alleged misconduct underlying the plaintiffs’ claims did
not establish a pattern of tortious conduct). Finally, a delay in medical care only constitutes an
Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial
harm. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). Plaintiff does not allege any
harm came from the delays he references.
ii.

Properly Trained Staff

Plaintiff contends that “Defendant’s medical staff is not properly trained to adequately
treat Plaintiff.” (Resp. at 18.)

23

Although Plaintiff does not identify BOP Physician’s Assistant Anthony Osagie by name
in his argument, Plaintiff states that a “medical provider of Defendant has no training or
education of Plaintiff’s medical condition of angioedema, and has no license to practice medicine
in the United States.” (Id.) Plaintiff’s criticism of Mr. Osagie’s medical qualifications and
practice, however, is not supported by admissible expert medical evidence, and Plaintiff is not
qualified to opine on the adequacy of Mr. Osagie’s medical qualifications or medical care.
Plaintiff also has provided no factual support for his contention that any other medical staff
member is not adequately trained.
Plaintiff has not demonstrated a pattern of violations regarding this allegation.
iii.

Emergency Plan or Protocol

Plaintiff argues he “has had frequent medical emergencies while in the care and custody
of [Defendant], including difficulty breathing, loss of consciousness and a need for resuscitation.
Despite this fact, Defendant has not established an emergency plan or protocol to assist with
responding to medical emergencies of Plaintiff.” (Resp. at 18.)
Defendant has policies and procedures in place to deal with any inmate’s medical
emergency, as detailed in paragraphs 17 through 25 of the Undisputed Facts. Plaintiff does not
provide any factual support or expert opinion evidence for his contention that Defendant’s
current procedures are insufficient.
Thus, Plaintiff also has not demonstrated a pattern of violations regarding this allegation.
iv.

Availability of EpiPen

Plaintiff contends that Dr. Paul Busse and Dr. Mitchell Boxer have opined that Plaintiff
“should be provided with an Epi[P]en or emergency kit to remain on his person or be quickly

24

accessible at all times.” (Resp. at 18.) Plaintiff argues that Defendant has not provided the same
and, thus, Plaintiff has to be transported to another facility to access an EpiPen. (Id.) Moreover,
Plaintiff argues, “even if an Epi[P]en was available at ADX, medical providers are not certified
or trained to administer it.” (Id.)
As to Plaintiff’s argument that ADX medical providers are not certified or trained to
administer an EpiPen, Plaintiff provides evidcnce of only one medical provider who has not been
trained to use an EpiPen. (See id., Pl.’s Facts, ¶ 46.) Thus, Plaintiff’s conclusory contention is
unavailing. Rather, it is undisputed that the ADX Health Services staff are capable of
administering emergent doses of necessary medications to stabilize an inmate, including the
emergent administration of epinephrine or prednisone. (See Undisputed Facts, ¶ 23.)
Plaintiff has not shown a “pattern of tortious conduct” regarding Defendant’s failure to
provide an EpiPen, nor has Plaintiff shown that Defendant’s violation of Plaintiff’s Eighth
Amendment rights is a “highly predictable” or “plainly obvious” consequence of Defendant’s
failure to provide an EpiPen. Brown, 520 U.S. at 409. In his expert report, Dr. Boxer states that,
in the event of “significant upper airway obstruction” caused by swelling of the tongue or throat,
“the administration of an EpiPen would be necessary.” (Resp., Ex. B at 2.) However, Dr. Busse
opines that Plaintiff “should have ready access to epinephrine.” (Id., Ex. H at 2.) According to
the EpiPen website, EpiPen is an epinephrine injection.3 As such, Plaintiff’s experts agree that

3

The court may, sua sponte, “judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b)(2), (c)(1). “It is not uncommon for courts to
take judicial notice of factual information found on the world wide web.” O’Toole v. Northrop
Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (citing City of Monroe Emps Ret. Sys. v.
Bridgestone Corp., 399 F.3d 651, 655 n.1 (6th Cir. 2005) (taking judicial notice of a term
defined on the website of the National Association of Securities Dealers, Inc.); Schaffer v.
25

Plaintiff should have epinephrine available; the difference in their opinions is only in the method
by which it should be administered. Thus, based on the conflicting opinions of Plaintiff’s own
experts, it cannot be said that it is “highly predictable” or “plainly obvious” that Defendant’s
failure to provide an EpiPen for Plaintiff “is substantially certain to result in a constitutional
violation,” or that Defendant has “ consciously or deliberately” chosen “to disregard the risk of
harm.” Brown, 520 U.S. at 409; Barney, 143 F.3d at 1307.
v.

Acknowledge Angioedema Symptoms and Provide Treatment

Finally, Plaintiff contends that he “has persistently reported to Defendant that his
symptoms of swelling, hives, and itching were a result of his condition of angioedema[, yet]
Defendant ignored this fact and refused to notate Plaintiff’s assertions in his medical records, . . .
[instead notating] it as an ‘allergic response.’ Consequently, Plaintiff was not provided any
appropriate treatment or medication for his angioedema.” (Resp. at 18–19.)
Plaintiff provides the following examples in which he alleges he did not receive proper
treatment or medication for his Angioedema:
1. On April 26, 2010, a medical provider of Defendant stated that while speaking with
Plaintiff she “notice[d] his upper lip swelling slightly… [and] observed two raised
hives on inside of right AC area.” (Mot., Ex. A, Attach. 5 at 18.) Plaintiff states that
“the incident was reported as an ‘allergic response’ and ‘hypertensive’, rather than the
angioedema that [he] reported.” (Resp., Pl.’s Statement, ¶ 21.) The medical record
reflects that Plaintiff took two antihistamine tablets, and “[a]fter several minutes [of
lying down] he belched twice, then stated he felt much better.” (Id.)
2. On February 21, 2013, Plaintiff states he “lost consciousness in his jail cell” and
“advised the medical provider that the same was caused by his angioedema.” (Resp.,
Pl.’s Statement, ¶ 26.) Plaintiff states his blood pressure was evaluated, but he did
not receive any treatment or medication for angioedema. (Id., ¶ 27.) The medical
provider noted, “Inmate reportedly passed out earlier, but looks stable at this time.”
Clinton, 240 F.3d 878, 885 n.8 (10th Cir. 2001) (taking judicial notice of information found in a
political reference almanac and citing to the almanac’s website). The court takes judicial notice
of the this fact on the EpiPen website, https://www.epipen.com/en.
26

(Mot., Ex. A, Attach. 8 at 9.) The provider examined Plaintiff, noting that he was
“Alert and Oriented,” his neck was “Supple, Symmetric, Trachea Midline,” his
pulmonary function was normal, and had a normal cardiovascular rhythm. (Id. at 8–
9.) Plaintiff “was instructed to take his [blood pressure] meds. in front of [the
provider] and he did; counseled on compliance.” (Id. at 9.)
Again, Plaintiff’s allegations that he did not receive medication on two occasions from
2007 to the present does not constitute a pattern of tortious conduct sufficient to subject the
defendant to liability. See Blueberry, 672 F. App’x 814, 817. Moreover, Plaintiff points to Dr.
Busse’s opinion that “treatment for [Plaintiff’s] Idiopathic Angioedema has not been optimized”
(Resp., Ex. G at 1); however, as to medications, Dr. Busse stated that, “Appropriate treatment
includes preventative daily non-sedating anti-histamines like Zyrtec, Claritin, Allegra taken
anywhere between [every day and four times per day] dosing.” (Id. at 2.) Loratadine is the
generic equivalent of Claritin,4 and it is undisputed that Plaintiff is able to purchase over thecounter antihistamines from the commissary, including loratadine, chlorpheniramine, and
Nasacort. (Mot., Ex. A, ¶ 31.) Finally, Plaintiff has provided no evidence or factual support that
Plaintiff’s medical treatment during these incidents was improper. A plaintiff’s disagreements
with the treatment provided by prison medical staff do not in themselves rise to the level of
deliberate indifference necessary to violate the Eighth Amendment. See Perkins v. Kan. Dep’t of
Corr., 165 F.3d 803, 811 (10th Cir. 1999).
3.

Conclusion Regarding Plaintiff’s Eighth Amendment Claim

Plaintiff has failed to showing that there is a genuine issue for trial on his Eighth
Amendment deliberate indifference claim. Celotex, 477 U.S. at 324; see also Fed. R. Civ. P.
56(c). Thus, Defendant is entitled to summary judgment.
4

See https://www.webmd.com/drugs/2/drug-5346-204/claritin-oral/loratadine-oral/details, of
which the court takes judicial notice.
27

B.

Injunctive and Declaratory Relief
Defendant argues that Plaintiff cannot establish a basis for prospective injunctive relief.

(Mot. at 49.)
Plaintiff lacks standing to sue for an injunction under City of Los Angeles v. Lyons, 461
U.S. 95 (1983), because Plaintiff fails to establish “the likelihood of substantial and immediate
irreparable injury, and the inadequacy of remedies at law.” Id. at 103. “The threatened injury
must be ‘certainly impending’ and not merely speculative.” Tandy v. City of Wichita, 380 F.3d
1277, 1283 (10th Cir. 2004). As the court has determined Defendant is entitled to summary
judgment because Plaintiff has not established that he has suffered a constitutional violation due
to any unconstitutional custom or policy, he is not entitled to injunctive relief.
Similarly, it is well established that the Declaratory Judgment Act is remedial and does
not itself confer jurisdiction on federal courts, Wyoming v. United States, 279 F.3d 1214, 1225
(10th Cir. 2002), and that Plaintiff must establish an Article III case or controversy as a
prerequisite for declaratory relief, see Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–41 617
(1937). The abstract possibility that Plaintiff may have an episode of Angioedema for which he
is not given what he considers to be appropriate treatment in the future certainly does not satisfy
Article III’s requirements.
WHEREFORE, for the foregoing reasons, it is
ORDERED that “Defendant’s Motion for Summary Judgment and Memorandum Brief
in Support Thereof” (Doc. No. 49) is GRANTED; it is further
ORDERED that judgment shall enter in favor of Defendant and against Plaintiff on all
claims for relief and causes of action asserted in this case; it is further

28

ORDERED that Defendant is awarded their costs to be taxed by the Clerk of Court in the
time and manner prescribed by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; it is
further
ORDERED that this case is CLOSED.
Dated this 22nd day of March, 2018.

29