McCleland v. Raemisch et al
Filing
226
ORDER. The Recommendation of United States Magistrate Judge and Order 215 is ACCEPTED IN PART as set forth in this order. Defendant Joanne McGrew's Motion for Summary Judgment 169 is GRANTED. CDOC Defendants' Motion for Summary Judgment 176 is GRANTED, by Chief Judge Philip A. Brimmer on 9/29/20.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-00233-PAB-NYW
ROBERT JW McCLELAND,
Plaintiff,
v.
RICK RAEMISCH,
RENAE JORDAN,
SUSAN TIONA,
DEBORAH BORREGO,
JOANNE McGREW, and
DAYNA JOHNSON,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge and Order [Docket No. 215] filed on April 23, 2020. Magistrate Judge
Nina Y. Wang recommends that Defendant Joanne McGrew’s Motion for Summary
Judgment [Docket No. 169] and CDOC Defendants’ Motion for Summary Judgment
[Docket No. 176] 1 be granted. Plaintiff filed objections to the magistrate judge’s
recommendation on May 8, 2020. Docket No. 220. On May 15, 2020, defendant
McGrew filed a response to plaintiff’s objections, Docket No. 221, and the CDOC
defendants filed a response on May 26, 2020. Docket No. 222. Plaintiff replied to
1
“CDOC defendants” collectively refers to defendants Rick Raemisch, Renae
Jordan, Susan Tiona, Deborah Borrego, and Dayna Johnson. See Docket No. 176 at
1.
defendant McGrew’s response on May 28, 2020, Docket No. 223, but di d not reply to
the CDOC defendants’ response.
I. BACKGROUND
The background facts have been set forth in the magistrate judge’s
recommendation and will not be repeated here except as relevant to resolving plaintiff’s
objections. Plaintiff is currently incarcerated at the Buena Vista Correctional Complex
in Buena Vista, Colorado. Docket No. 65 at 2. W hile incarcerated, he has sought
medical treatment for chronic Hepatitis-C and sought medical treatment from the
Colorado Department of Corrections (“CDOC”). Docket No. 215 at 6, ¶ 1. On February
28, 2019, plaintiff filed his Fifth Amended Complaint, alleging that the CDOC
“intentionally delays necessary medical care for chronic hepatitis C infection (HCV) to
its prisoners by promulgation of its Clinical Standards and Procedures for Hepatitis C
Evaluation, Management, and Treatment.” Docket No. 65 at 4. Plaintiff alleges in his
complaint that “[t]he unconstitutional policy and the deliberate indifference to [plaintiff’s]
serious medical need for treatment, has [led] to substantial pain, permanent loss of
kidney function, shortened life span, and emotional distress.” Id. The magistrate judge
and the parties have interpreted plaintiff’s claim as a deliberate indifference claim
under the Eighth Amendment. See Docket No. 215 at 2; 2 Docket No. 169 at 5; Docket
No. 176 at 3; Docket No. 197 at 8.
2
Specifically, the magistrate judge interpreted plaintiff’s complaint as “asserting
two distinct Eighth Amendment deliberate indifference claims pursuant to § 1983: (1) a
challenge to the [CDOC] Policy against Defendants Raemisch, Jordan, and Tiona . . .
and (2) a challenge to [plaintiff’s] medical care against Defendants McGrew, Tiona,
Borrego, and Johnson.” Docket No. 215 at 2-3.
2
Defendant McGrew and the CDOC defendants moved for summary judgment on
November 11, 2019 and November 27, 2019, respectively. See Docket No. 169 and
Docket No. 176. The magistrate judge recommends that both motions for summary
judgment be granted and that plaintiff’s claims be dismissed with prejudice. Docket No.
215 at 31. Specifically, the magistrate judge concluded that plaintiff could not survive
summary judgment because he could not establish either of the two prongs required to
succeed on an Eighth Amendment deliberate indifference claim: (1) that plaintiff
suffered from an objectively serious medical need, and (2) that defendants were
subjectively aware of the serious medical need and recklessly disregarded it. Id. at 14.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
3
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation
marks omitted)). “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 of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must establish,
at a minimum, an inference of the presence of each element essential to the case.”
Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for summary
judgment, a court must view the evidence in the light most favorable to the non-moving
party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
When reviewing a magistrate judge’s recommendation on a dispositive motion,
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 Prop. Known as 2121
East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). 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. (quoting Thomas v.
Arn, 474 U.S. 140, 147 (1985)). Because plaintiff is proceeding pro se, the Court
4
construes his filings liberally without serving as his advocate. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
III. ANALYSIS
The Eighth Amendment’s ban on cruel and unusual punishment is violated if a
defendant’s “deliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain.” Self v. Crum, 439 F.3d 1227, 1230
(10th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A claim for
deliberate indifference has both an objective and a subjective component. To satisfy
the objective component, a prisoner must demonstrate that his medical need is
“objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
medical need is sufficiently serious if “it is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999) (citation omitted). To satisfy the subjective component, a prisoner
must demonstrate that the defendant acted with a “sufficiently culpable state of mind.”
Farmer, 511 U.S. at 834. “‘[D]eliberate indifference’ is a stringent standard of fault.”
Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 410 (1997). “A showing of simple or even
heightened negligence will not suffice.” Id. at 407; see also Giron v. Corrs. Corp. of
Am., 191 F.3d 1281, 1286 (10th Cir. 1999). Instead, the defendant must “know[] of and
disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
That is, “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
5
inference.” Id.
Plaintiff raises the following objections to the magistrate judge’s order: (1) the
magistrate judge erred in finding that plaintiff had failed to offer a witness competent to
interpret his medical records or scientific literature because the magistrate judge had
previously denied plaintiff’s request for appointment of an expert witness, Docket No.
220 at 1-3; (2) the magistrate judge erred in refusing to take judicial notice of his
chronic kidney disease, id. at 3-4; (3) the magistrate judge erred in concluding that
plaintiff had failed to establish the objective component of his deliberate indifference
claim, id. at 4-5; and (4) the magistrate judge erred in determining that plaintiff had
failed to establish the subjective component of his deliberate indifference claim. Id. at
5-11.
A. Appointing an Expert Witness
Plaintiff states that the “crux of [his] objection to the Magistrate’s
recommendation stems from the [magistrate judge’s] determination that ‘Plaintiff . . .
fails to offer any witness competent to interpret his medical records or the scientific
literature,’” and the magistrate judge’s conclusion that plaintiff “‘fails to demonstrate the
requisite expertise to interpret these documents himself or to offer rebuttal opinions to
Defendant Tiona and Dr. Maul.’” Docket No. 220 at 1 (quoting Docket No. 215 at 5
n.3). Plaintiff asserts that this ruling was erroneous because the magistrate judge
previously denied plaintiff’s motion to appoint an expert witness. Id. at 2. According to
plaintiff, “[t]he medical nature of this claim should have made it apparent that [plaintiff]
would need an expert” to interpret plaintiff’s medical records. Id. at 2-3.
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Plaintiff’s objection is, in essence, a challenge to the magistrate judge’s previous
ruling that the appointment of an expert witness in this case was not necessary. See id.
at 2. In addition, plaintiff appears to challenge the magistrate judge’s denial of
plaintiff’s request for appointment of counsel. See id. at 3 (requesting that the Court
“reconsider [the] denial of the appointment of counsel and request volunteer counsel
for him”); see also Docket No. 143 (magistrate judge denying plaintiff’s fourth motion for
appointment of counsel).
Because plaintiff did not object to any of the magistrate’s orders denying his
motions to appoint an expert witness, and because the Court has already overruled
plaintiff’s objection to the magistrate judge’s first denial of appointment of counsel, see
Docket No. 54, plaintiff’s belated objections are not properly before the Court. See
Fed. R. Civ. P. 72(a) (“A party may serve and file objections to [a non-dispositive] order
within 14 days after being served with a copy. A party may not assign as error a defect
in the order not timely objected to.”). However, for purposes of completeness, the
Court addresses plaintiff’s expert-based objection and finds that the magistrate judge
did not err in denying plaintiff’s motion to appoint an expert witness.
“Rule 706(a) of the Federal Rules of Evidence authorizes the district court to
appoint an expert witness.” Patel v. United States, 399 F. App’x 355, 359 (10th Cir.
2010) (unpublished). However, “courts rarely exercise this power.” Rachel v. Troutt,
820 F.3d 390, 397 (10th Cir. 2016). “[T]he purpose of Rule 706 is to assist the court in
evaluating contradictory or complex evidence or issues. It is not designed to aid a
party’s prosecution of his own case.” McClendon v. City of Albuquerque, 2015 WL
7
13667177, at *4 (D.N.M. Oct. 13, 2015). “In the absence of ‘complex scientific
evidence or complex issues,’ the circuit courts have held that a district court does not
abuse its discretion in declining to appoint an expert pursuant to Rule 706.” Johnson v.
Kellison, No. 18-cv-02112-RM-KLM, 2019 WL 5894185, at 2 (D. Colo. Nov. 8, 2019)
(citing cases).
Although the underlying issue in this case involves the adequacy of plaintiff’s
medical care, which necessarily requires the use and analysis of medical records, the
Court does not find that the issues are so complex as to require a medical expert to
assist the Court, particularly where defendants have submitted declarations from
physicians explaining plaintiff’s medical records, his medical conditions, and his course
of treatment. See Rachel, 820 F.3d at 398 (holding that district court did not abuse its
discretion in declining to appoint expert witness where “the nature of [the plaintiff’s]
underlying claim,” which was a deliberate indifference in medial treatment claim, was
“not sufficiently complicated to require an independent medical expert”); see also
Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir. 1997) (finding no error in decision to
not appoint expert in medical treatment deliberate indifference case because
“determining deliberate indifference was not so complicated that an expert was
required to establish [the plaintiff’s] case”). While plaintiff asserts that he needs an
expert witness to rebut the defendants’ arguments concerning the adequacy of his
care, “it cannot follow that a court must therefore appoint an expert under Rule 706
whenever there are allegations of medical malpractice.” Rachel, 820 F.3d at 398. The
Court finds no error in the magistrate judge’s denial of the appointment of an expert and
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will overrule plaintiff’s objection.
B. Judicial Notice
Plaintiff argues that the magistrate judge erred when she did not take judicial
notice of his chronic kidney disease, “which could have been accurately and readily
determined from the sources [plaintiff] provided, whose accuracy cannot reasonably be
questioned,” and from which a reasonable jury could have concluded that plaintiff’s
kidneys are not “normal functioning.” Docket No. 220 at 3-4. Instead, plaintiff argues,
the magistrate judge “chose to exclusively accept the defendant[s’] medical
conclusions.” Id. at 3. However, plaintiff did not request that the magistrate judge take
judicial notice of any documents in either of his responses to defendants’ motions for
summary judgment. See Docket No. 183; Docket No 197. Thus, the Court declines to
consider plaintiff’s objection that the magistrate judge erred by not taking “judicial
notice” of chronic kidney disease. See Goodloe v. U.S. Parole Comm’n, No. 06-cv00212-CMA-BNB, 2008 WL 5156447, at *1 (Dec. 8, 2008); see also Parks v. Persels &
Assocs., LLC, 509 B.R. 345, 357 (D. Kan. 2014) (“Generally, courts do not consider
new arguments and new evidence raised in objections to a magistrate judge's report
and recommendation that were not raised, and thus were not considered, by the
magistrate judge.”) (quotation omitted). In any event, the magistrate judge did not err
by not taking judicial notice of “the definition of and ranges for the different grades of
[chronic kidney disease],” as set out in medical literature submitted by plaintiff. Docket
No. 220 at 3-4. See Mack v. Friedman, 2008 WL 11439337, at *10 n.2 (N.D. Cal. Mar.
5, 2008) (“Mack’s request that the court take judicial notice of the two articles is denied
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because the articles and statements therein are not facts not subject to reasonable
dispute that qualify for judicial notice under Federal Rule of Evidence 201. The articles
also are inadmissible hearsay and are excluded under Federal Rules of Evidence 801
and 802. Mack’s own interpretation of those articles and opinion about the appropriate
care for his injury is not competent evidence because he has not shown he has any
medical expertise.”). The Court finds no merit in plaintiff’s objection, which is not
properly before the Court, and finds that there is “no clear error on the face of the
record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes.3
C. Objective Component
In her recommendation, the magistrate judge found that plaintiff had failed to
establish the necessary objective component of his deliberate indifference claim.
Docket No. 215 at 19. Specifically, the magistrate judge concluded, inter alia, that
plaintiff’s “intermittent complaints of diffuse body and renal pain do not demonstrate
substantial pain for purposes of the objective component of a deliberate indifference
claim.” Docket No. 215 at 17. Plaintiff objects to this conclusion. Docket No. 220 at 4.
He argues that his diffuse body pain and renal pain are debilitating, and asserts that he
provided “objectively serious” evidence that he experienced severe complications
resulting from his chronic Hepatitis-C. Id. at 4-5. He states that his conditions “cause[]
muscle pain, joint pain, bone pain, along with uremic encephalopathy
(dizziness/confusion),” which constitutes pain and suffering. Id. at 4. The CDOC
3
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).
10
defendants respond that, “[b]ecause Plaintiff did not suffer a life-threatening event, or
pain which incapacitated him, the Magistrate Judge’s finding that Plaintiff failed to
demonstrate substantial pain for purposes of the objective component of a deliberate
indifference claim was proper.” Docket No. 222 at 7.
An inmate’s medical needs can be “sufficiently serious” to satisfy the objective
component of a deliberate indifference claim if “the condition results in substantial
pain.” Perotti v. Serby, 786 F. App’x 809, 814 (10th Cir. 2019) (unpublished); see also
Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (quoting Wilson v. Seiter,
501 U.S. 294, 297 (1991)) (“The Eighth Amendment forbids ‘unnecessary and wanton
infliction of pain.’”); Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (stating that
the objective prong can be satisfied by a showing of “considerable pain”). “For
example, when the pain lasts hours or days prior to treatment, the condition may be
considered sufficiently serious.” Perotti, 786 F. App’x at 814. Thus, the Court rejects
the CDOC defendants’ contention that, in order for pain to be sufficiently serious to
satisfy the objective component, the pain must incapacitate the inmate or be related to
a life-threatening event.
However, the Court finds no error in the magistrate judge’s conclusion that
plaintiff has failed to establish a genuine issue of material fact as to whether he
suffered substantial pain for purposes of his deliberate indifference claim. Construing
the facts in the light most favorable to plaintiff, and reading plaintiff’s summary
judgment responses liberally, plaintiff sets forth no disputed facts demonstrating the
extent of his pain so as to find that plaintiff suffered from “substantial” pain to which
11
defendants were deliberately indifferent. At best, plaintiff asserts that it is disputed
“[w]hether [plaintiff’s] complaints of pain, as documented in his medical records, are
sparse.” Docket No. 197 at 4, ¶ 19. In addi tion, in the argument sections of his
responses, plaintiff states that (1) his chronic kidney disease and Sjogren’s Syndrome
“cause considerable pain,” Docket No. 183 at 4; (2) he was diagnosed with a pain
disorder in September 2018, id. at 3; and (3) “Sjogren’s Syndrome has been causing
many of [plaintiff’s] painful symptoms.” Docket No. 197 at 12. In support of his
contention that he suffered “considerable pain” from his chronic kidney disease and
Sjogren’s Syndrome, plaintiff points to a print-out from Mayo Clinic website stating that
Sjogren’s Syndrome may cause “[j]oint pain, swelling, and stiffness,” Docket No. 183 at
43; and a log of his medical kites (requests for medical attention) which demonstrate
that he made the following complaints of pain: (1) “pain in the bladder/groin area –
trouble urinating” on January 31, 2018; (2) “My kidneys hurt and I have pain in my groin
. . . my urine burns” on February 16, 2018; (3) “pain in kidneys/[b]ladder” on April 3,
2018; and (4) “shooting pain in my head (10-20 seconds)” on May 12, 2018. Docket
No. 197-1 at 114. However, this evidence – excerpts from medical literature and
conclusory notations in plaintiff’s medical records that he was suffering from pain
without information regarding the severity of the pain or the extent of the pain – is
insufficient to create a genuine dispute of material fact that plaintiff was suffering from
substantial pain to which defendants were deliberately indifferent. See Southway v.
Central Bank of Nigeria, 149 F. Supp. 2d 1268, 1274 (D. Colo. 2001) (“Unsupported
allegations without ‘any significant probative evidence tending to support the complaint’
12
are insufficient” to defeat summary judgment) (quotation omitted); compare Sealock,
218 F.3d at 1210 (genuine issue of material fact as to objective component of
deliberate indifference claim where there was evidence that plaintiff “suffered from
severe chest pain which he reasonable believed was caused by a heart attack,” which
lasted “several hours,” because the pain was “sufficiently serious to require prompt
medical attention”); Perotti, 786 F. App’x at 814 (finding genuine issue of fact where the
evidence demonstrated that plaintiff experienced “intense” and “excruciating” pain for
five days after breaking his arm in two places); Al-Turki v. Robinson, 762 F.3d 1188,
1193 (10th Cir. 2014) (genuine issue of fact where the evidence demonstrated that
plaintiff’s “pain was so severe that he collapsed, vomited, and believed he was dying”
and where “[t]his severe pain and fear of death lasted for several hours.”). “[N]ot every
twinge of pain suffered as the result of delay in medical care is actionable.” Sealock,
218 F.3d at 1210. Because the Court finds no genuine dispute as to the substantiality
of plaintiff’s pain, the Court will overrule plaintiff’s objection.
D. Subjective Component
Because plaintiff failed to demonstrate that a genuine issue of material fact
exists as to the objective component of his deliberate indifference claim, defendants
are entitled to summary judgment. See Mata v. Saiz, 427 F.3d 745, 752 (10th Cir.
2005) (“[I]n order for [the plaintiff] to avoid summary judgment on her Eighth
Amendment claims, [he] was required to set forth facts demonstrating that [his] medical
need was objectively sufficiently serious, and that defendants’ delay in meeting that
need caused [him] substantial harm.”). However, despite the magistrate judge’s finding
13
as to plaintiff’s failure to establish the objective component of a deliberate indifference
claim, the magistrate judge analyzed, “for the sake of completeness,” whether plaintiff
could satisfy the subjective component. Docket No. 215 at 19. The magistrate judge
concluded that plaintiff could not. Id.
Plaintiff raises several objections to the magistrate judge’s conclusion that
plaintiff cannot establish the subjective prong of a deliberate indifference claim. See
Docket No. 220 at 5-11. However, because the Court concludes that, regardless of the
magistrate judge’s analysis on the subjective component, defendants are entitled to
summary judgment, the Court declines to address plaintiff’s objections to the magistrate
judge’s findings on the subjective component. For this reason, the Court will not accept
– as moot – this portion of the magistrate judge’s recommendation.
IV. CONCLUSION
For these reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge and
Order [Docket No. 215] is ACCEPTED IN PART as set forth in this order. It is further
ORDERED that Defendant Joanne McGrew’s Motion for Summary Judgment
[Docket No. 169] is GRANTED. It is further
ORDERED that the CDOC Defendants’ Motion for Summary Judgment [Docket
No. 176] is GRANTED. It is further
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ORDERED that this case is closed.
DATED September 29, 2020.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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