Jones, Sr. v. Kraus et al

Filing 74

ORDER. The Recommendations of United States Magistrate Judge 57 and 58 are ACCEPTED. Motion to Dismiss 41 is GRANTED in part and DENIED in part, as recommended by the magistrate judge. Motion for Summary Judgment 42 is GRANTED. The req uest for appointment of counsel in Plaintiff's Objection to Recommendation of United States Magistrate Judge and Request for Appointment of Civil Pro Bono Representation Pursuant to Local Rule 15(a) 61 is DENIED as moot. Plaintiff's fir st and third claims are dismissed with prejudice. Plaintiff's second claim is dismissed without prejudice. Within 14 days after entry of judgment, defendants may have their costs by filing a Bill of Costs with the Clerk of the Court. This case is closed, by Judge Philip A. Brimmer on 3/8/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 17-cv-01231-PAB-MEH
STEVEN BRADLEY JONES, SR., #06332-091,
Plaintiff,
v.
DR. GEORGE SANTINI M.D./C.D.,
FNU WILLIAMSON P.A./MLP,
HECTOR LOZANO, Assoc. Administrator,
LARRY HUTSON, Administrator, and
DR. THOMAS G. KRAUS M.D./C.D.,
Defendants.

ORDER

This matter is before the Court on two recommendations [Docket Nos. 57 and
58] filed on January 2, 2017 by Magistrate Judge Michael E. Hegarty (collectively, the
“Recommendations”). Also before the Court are Plaintiff’s Objection to
Recommendation of United States Magistrate Judge and Request for Appointment of
Civil Pro Bono Representation Pursuant to Local Rule 15(a) [Docket No. 61] and
Plaintiff's Objection to Recommendation of United States Magistrate Judge (Doc. 58),
and Request, Demand for Jury Trial Pursuant to Fed. R. Civ. P. 38(b). Docket No. 62. 1

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In light of plaintiff’s pro se status, the Court construes his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 &
n.3 (10th Cir. 1991).

I. BACKGROUND
Plaintiff Steven Bradley Jones, Sr., an inmate at FCI Englewood in Colorado,
suffered an adverse reaction to 500 mg. of Ciprofloxacin, which was prescribed to him
by defendant Thomas G. Kraus M.D. Docket No. 21 at 4-5. Plaintiff alleges that, as a
result of the adverse reaction, he “continues to suffer from painful, itchy, burn-like
lesions upon his underarms, hands, face and upper arms” and that he has developed
“adverse reactions to common, everyday toiletry products such as soap, deoderant
[sic], toothpaste etc.” Docket No. 21 at 4. Plaintif f claims that, since the adverse
reaction, defendants other than Dr. Kraus have denied him proper treatment and have
refused to refer him to a dermatologist. Id. at 5. Plaintiff also claims that, in retaliation
for filing this lawsuit, defendant Hector Lozano, the associate administrator of health
services at FCI Englewood, told defendant Williamson, a physician’s assistant, to
confiscate plaintiff’s cane, which Mr. Williamson did. Id. at 2, 6.
On May 19, 2017, Magistrate Judge Gordon P. Gallagher directed plaintiff to
amend his initial complaint because his claims were not supported by specific factual
allegations. Docket No. 7 at 5. After amendment, District Judge Lewis T. Babcock
dismissed plaintiff’s claims against Dr. Kraus as legally frivolous and ordered that the
case be randomly reassigned. Docket No. 11 at 4; see also D.C.COLO.LCivR 8.1.
Thereafter, plaintiff filed a second amended complaint containing three claims: (1)
deliberate indifference to his serious medical needs2 against all defendants, (2)

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Plaintiff’s second amended complaint does not identify the basis for plaintiff’s
first claim, but such claims, by their nature, arise under the Eighth Amendment. See
Docket No. 21 at 5.
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retaliation in violation of the First Amendment against defendants Williamson and
Lozano based on the confiscation of plaintiff’s cane, and (3) failure to protect in
violation of the Eighth Amendment against Dr. Kraus. Docket No. 21 at 5-7.
After plaintiff served all defendants except Dr. Kraus, defendants George Santini
M.D., Larry Hutson, the administrator of health services at FCI Englewood, Williamson
and Lozano (collectively, “defendants”) filed a motion to dismiss plaintiff’s first and
second claims for relief. Docket No. 41. Defendants Williamson and Lozano also
moved for summary judgment on plaintiff’s second claim. Docket No. 42. After these
motions were filed, plaintiff served Dr. Kraus. Docket No. 56.
On January 2, 2017, Magistrate Judge Hegarty issued his Recommendations.
Docket Nos. 57, 58. Plaintiff filed timely objections to the Recommendations. Docket
Nos. 61, 62. Plaintiff also requests appointment of pro bono counsel pursuant to
D.C.COLO.LCivR 15. Docket No. 61 at 5.
II. MAGISTRATE JUDGE RECOMMENDATIONS
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to” by plaintiff. Fed. R. Civ. P. 72(b)(3). “[A] party’s
objections to the magistrate judge’s report and recommendation must be both timely
and specific to preserve an issue for de novo review by the district court . . . .” United
States v. One Parcel of Real Property Known As 2121 East 30th St., 73 F.3d 1057,
1060 (10th Cir. 1996) (emphasis added). To be sufficiently specific, an objection must
“enable[] the district judge to focus attention on those issues—factual and legal—that
are at the heart of the parties’ dispute.” See id. at 1059 (quoting Thomas v. Arn, 474

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U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review a
magistrate judge’s recommendation under any standard it deems appropriate. See
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at
150 (“[I]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings”).
A. Plaintiff’s First Claim
In his first claim, plaintiff alleges violations of his Eighth Amendment rights.
Docket No. 21 at 5, 7. “A prison official’s ‘deliberate indifference’ to a substantial risk of
serious harm to an inmate violates the Eighth Amendment.” See Farmer v. Brennan,
511 U.S. 825, 828 (1994). To prevail on his claim that defendants violated the Eighth
Amendment, plaintiff must show that (1) objectively, the harm he complains of is
sufficiently “serious” to merit constitutional protection and (2) defendants were
subjectively aware of a substantial risk to plaintiff’s health or safety and acted in
purposeful disregard of that risk. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Upon a public official’s assertion of a qualified immunity defense, plaintiff
bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque,

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549 F.3d 1269, 1277 (10th Cir. 2008). Under the f irst prong of the analysis, the plaintiff
is required to “establish that the defendant’s actions violated a constitutional or statutory
right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). The determination of
whether a violation occurred under the first prong of the qualified immunity analysis
turns on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights,
509 F.3d 1278, 1282-83 (10th Cir. 2007). Under the second prong , the plaintiff must
show that the right at issue was “clearly established” at the time of the defendant’s
alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
The magistrate judge recommends that plaintiff’s first claim be dismissed on
qualified immunity grounds. Docket No. 57 at 6. Specifically, the magistrate judge
found that plaintiff had both failed to allege a constitutional violation and failed to show
that the law was clearly established. Id. at 10-11. The magistrate judge assumed that
plaintiff’s alleged injury was sufficiently serious to meet the objective element of a
serious medical need, but nonetheless found that plaintiff had not alleged a
constitutional violation because he had not alleged sufficient facts to support the
subjective element of deliberate indifference. Id. at 7. The magistrate judge found that
the defendants’ decisions about treatment “constitute[d] an exercise of medical
judgment not subject to Eighth Amendment scrutiny.” Id. at 8 (citing Duffield v.
Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008)). T he magistrate judge found that
plaintiff did not show that the law was clearly established because “binding Supreme
Court or Tenth Circuit precedent would not put a reasonable officer on notice that

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consistently declining an inmate’s request to see a dermatologist, and instead treating
the inmate internally, would violate the inmate’s constitutional rights.” Id. at 11.
Plaintiff devotes the majority of his objection to arguing that his injury is
objectively serious. Docket No. 61 at 1-3. But, as noted abov e, the magistrate judge
assumed that plaintiff’s injury was objectively serious. Docket No. 57 at 7-10. Thus,
this objection is irrelevant to the magistrate judge’s recommendation.
In relation to the subjective element, plaintiff argues that his allegations state a
constitutional violation because he was “left to suffer” due to his condition “without
proper diagnosis or proper prescribed course of treatment, even after repeatedly
informing defendants of the situation.” Docket No. 61 at 3.
The Court agrees with the magistrate judge’s determination that plaintiff’s
allegations do not state a constitutional violation because they do not satisfy the
subjective element of the deliberate indifference test. Plaintiff’s allegations that Dr.
Santini failed to correctly diagnose his condition and prescribed unsuccessful
treatments does not show that Dr. Santini was indifferent to plaintiff’s suffering.
Sealock v. Colorado, 218 F.3d 1205, 1212 n.7 (10th Cir. 2000) (f inding that
misdiagnosis did not constitute deliberate indifference); Oakley v. Phillips, No. 15-cv01004-CMA, 2015 WL 5728734, at *7 (D. Colo. Sept. 30, 2015) (“T he subjective part of
the test is not satisfied when a physician evaluates a patient’s symptoms and provides
care consistent with those symptoms, but still misdiagnoses the patient, . . . particularly
when there is evidence of a good faith effort to treat and diagnose the condition.”)
(citation omitted); see also Docket No. 21 at 5. Likewise, plaintiff’s allegations that
defendants denied his requests to be referred to a dermatologist are insufficient to
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show that defendants were deliberately indifferent. See Ledoux v. Davies, 961 F.2d
1536, 1537 (10th Cir. 1992) (“Plaintiff’s belief that he needed additional medication,
other than that prescribed by the treating physician, as well as his contention that he
was denied treatment by a specialist is, as the district court correctly recognized,
insufficient to establish a constitutional violation.” (citing Estelle v. Gamble, 429 U.S. 97,
107 (1976))); Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (“Matters that
traditionally fall within the scope of medical judgment are such decisions as whether to
consult a specialist or undertake additional medical testing.”).3 Plaintiff does not allege
that defendants’ decisions not to refer him to a specialist were motivated by malice, that
Dr. Santini knew he was unable to treat plaintiff, that Dr. Santini completely denied him
care, or that Dr. Santini’s actions were otherwise more than a negligent failure to
diagnose and treat plaintiff’s condition. This is insufficient to state a claim for deliberate
indifference in violation of the Eighth Amendment because it does not meet the
subjective prong of the test. Sealock, 218 F.3d at 1211. Therefore, the Court will
overrule plaintiff’s objections and adopt the magistrate judge’s recommendation that
claim one be dismissed with respect to defendants.
Because the Court finds that plaintiff’s allegations do not establish a

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Plaintiff does not allege that defendants Lozano and Hutson have any medical
training. See Docket No. 21 at 5. As such, it is not deliberate indif ference for them to
rely on Dr. Santini’s medical judgment regarding whether plaintiff should be referred to
a specialist for treatment. See McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977)
(holding that a prison official was entitled to rely on the opinion of a medical
professional and that plaintiff’s disagreement with that opinion did not provide a basis
for a deliberate indifference claim).

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constitutional violation, the Court does not address the second prong of the qualified
immunity analysis, i.e., whether the law was clearly established. See Gutierrez v.
Cobos, 841 F.3d 895, 898 (10th Cir. 2016).
B. Plaintiff’s Second Claim
With respect to the motion for summary judgment [Docket No. 42], the
magistrate judge recommends that it be granted and plaintiff’s second claim be
dismissed for failure to exhaust administrative remedies. Docket No. 58 at 7.
Under 42 U.S.C. § 1997e(a), plaintiff was required to exhaust his administrative
remedies before filing his claims. Plaintiff does not dispute that he failed to comply with
the Bureau of Prisons’ four-step grievance process before he filed suit. See Docket No.
62. Plaintiff argues, however, that the danger posed by the lack of his cane was a
“‘special circumstance[]’” that excused his failure to exhaust administrative remedies.
Id. at 4 (quoting Ruggiero v. Cty. of Orange, 386 F. Supp. 2d 434, 437 (S.D.N.Y.
2005)). Plaintiff did not raise this argument in his response to the motion for summary
judgment, Docket No. 52, and, therefore, it is waived. Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the
magistrate judge's recommendation are deemed waived.”). Accordingly, the Court
overrules plaintiff’s objection that he is excused from exhausting administrative
remedies.
In this matter, the Court has reviewed the Recommendation [Docket No. 58] to
satisfy itself that there is “no clear error on the face of the record.”4 Fed. R. Civ. P.
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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
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72(b), Advisory Committee Notes. The Court finds no clear error with respect to the
magistrate judge’s recommendations and will adopt them. Accordingly, the Court will
grant the motion for summary judgment and dismiss plaintiff’s second claim.
III. CLAIMS AGAINST DR. KRAUS
Because plaintiff is a prisoner and he is seeking redress from an officer or
employee of a governmental entity, the Court must review plaintiff’s claims pursuant to
28 U.S.C. § 1915A(a) “as soon as practicable after docketing” and dismiss any claims
that are legally frivolous. A legally frivolous claim is one in which the plaintiff asserts the
violation of a legal interest that clearly does not exist or asserts facts that do not support
an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). Judge Babcock
found that plaintiff’s
Eighth Amendment claim is legally frivolous to the extent the claim is
asserted against Dr. Kraus because Mr. Jones alleges only that Dr. Kraus
“prescribed the fateful medication which has damaged/poisoned plaintiff.”
(ECF No. 10 at 5.) Mr. Jones does not allege any facts that demonstrate
Dr. Kraus prescribed the medication knowing Mr. Jones faced a
substantial risk of serious harm of an adverse reaction or that Dr. Kraus
has been involved in the alleged denial of medical treatment in response
to the adverse reaction. As a result, the facts alleged do not support an
arguable Eighth Amendment claim against Dr. Kraus.
Docket No. 11 at 4. Plaintiff’s first claim, for deliberate indifference, is identical to the
allegation in plaintiff’s first amended complaint, which was dismissed as frivolous.
Compare Docket No. 10 at 5 with Docket No. 21 at 5. Plaintiff’s third claim, for failure to
protect, states that “Dr. Kraus has a vast knowledge of the medications that he
suggests and prescribes to his patients, and Dr. Kraus knew or should have known that

review. Fed. R. Civ. P. 72(b).
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the medication Ciprofloxacin 500MG could be dangerous and/or harmful to patients on
an individual basis.” Docket No. 21 at 7. This claim did not appear in plaintiff’s first
amended complaint. See Docket No. 10 at 7.
Despite plaintiff’s two attempts at amendment, plaintiff’s allegations do not
provide an arguable basis for any claim that Dr. Kraus violated plaintiff’s Eighth
Amendment rights. Specifically, plaintiff provides no factual basis that Dr. Kraus would
have known that a prescription for 500 mg. of Ciprofloxacin presented a serious risk of
harm to plaintiff before plaintiff’s adverse reaction to the medication. Plaintiff’s claims
that Dr. Kraus knew about the dangers of medications generally does not provide a
factual basis for an Eighth Amendment claim because it does not show that Dr. Kraus
actually drew the inference that 500 mg. of Ciprofloxacin posed a risk of harm to
plaintiff. Farmer, 511 U.S. at 837 (“[A] prison official cannot be found liable under the
Eighth Amendment . . . unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”). “An accident, although it may produce added anguish, is not
on that basis alone to be characterized as wanton infliction of unnecessary pain.”
Estelle, 429 U.S. at 105. As such, plaintiff’s claims against Dr. Kraus are legally
frivolous and must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). Therefore, the
Court will dismiss plaintiff’s first and third claims against Dr. Kraus.
IV. APPOINTMENT OF COUNSEL
Plaintiff notes that defendants are represented by counsel and requests

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appointment of counsel so that he can have the “same protection which has been
afforded to these defendants.” Docket No. 61 at 5. Because the Court’s ruling s result
in the dismissal of all of plaintiff’s claims, the Court will deny plaintiff’s request for
appointment of counsel as moot.
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 57] is ACCEPTED. It is further
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 58] is ACCEPTED. It is further
ORDERED that the Motion to Dismiss [Docket No. 41] is GRANTED in part and
DENIED in part, as recommended by the magistrate judge. It is further
ORDERED that the Motion for Summary Judgment [Docket No. 42] is
GRANTED. It is further
ORDERED that the request for appointment of counsel in Plaintiff’s Objection to
Recommendation of United States Magistrate Judge and Request for Appointment of
Civil Pro Bono Representation Pursuant to Local Rule 15(a) [Docket No. 61] is DENIED
as moot. It is further
ORDERED that plaintiff’s first and third claims are dismissed with prejudice. It is
further
ORDERED that plaintiff’s second claim is dismissed without prejudice. It is
further

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ORDERED that, within 14 days after entry of judgment, defendants may have
their costs by filing a Bill of Costs with the Clerk of the Court. It is further
ORDERED that this case is closed

DATED March 8, 2018.
BY THE COURT:

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

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