Dalton v. Aulepp et al

Filing 22

MEMORANDUM AND ORDER ENTERED: Defendant's motion 15 for summary judgment is sustained. This action is dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 02/19/15. Mailed to pro se party Justin Lynn Dalton by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUSTIN LYNN DALTON,
Plaintiff,
vs.

Case No. 13-3089-SAC

KRISTINE AULEPP,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the court upon defendant’s Motion
for Summary Judgment (Doc. 15) and plaintiff’s “Memorandum in
Opposition”

(Doc.

18)

to

defendant’s

motion.

Having

fully

considered these pleadings and all materials in the file, the
court concludes for the following reasons that defendant Aulepp
has shown that “no disputed material fact exists regarding the
defenses asserted” and movant is entitled to a judgment as a
matter of law.”

Rule 56(a),

Federal Rules Civil Procedure;

Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).

BACKGROUND
At the time this Bivens1 action was filed, Mr. Dalton was an
inmate of the United States Penitentiary, Leavenworth, Kansas
1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
1

(USPL).2
denied

In his complaint, Mr. Dalton claimed that he was being
necessary

medical

treatment

for

his

two

major

health

issues: Hepatitis C (HCV) and a bone infection in his spine,
that treatment has been delayed, and that he has been denied
stronger medication necessary for his chronic back pain.

In

support of his claims, plaintiff alleged the following.

He

entered federal prison in 2010 with serious health conditions of
which his sentencing judge was aware.
transferred
South

from

Carolina.

FCI-Talladega
During

this

to
time

In February 2012, he was
FCI-Williamsburg,
he

encountered

Salters,
delays

in

treatment because “procedures and tests” were “mostly restarted”
and he was given “medication that doesn’t help and is horrible
on (his) liver.”

In July 2012, medical staff at Williamsburg

submitted his case for approval for HCV treatment; however, he
was bussed to the USPL the following day.

Upon his confinement

at the USPL, he “had medications taken from” him and was “placed
only on Tylenol and Gabapentin” both of which are not sufficient
for chronic pain and “horrible on your liver” especially for
persons

with

HCV.

Dr.

Aulepp

took

him

off

medications

prescribed by prior physicians and refused to switch him to “a
proper pain med with less effects” on his damaged liver.

2

He has

Plaintiff is currently confined at the USP-Terre Haute in Indiana. His
claims against Dr. Aulepp for injunctive relief were rendered moot by this
transfer.
2

suffered “severe chronic pain throughout (his) entire stay” at
the USPL.
In addition to his medical claims, plaintiff asserts that
work assignment and “housing orders” violated his rights under
the Equal Protection Clause and the Eighth Amendment in that
they amounted to cruel and unusual punishment.

In support he

alleges that he was mistakenly assigned to a top bunk and that
“even

though

the

doctor

said”

he

was

not

cleared

“for

food

service,” he was placed in food service for around two months
where he worked as a server and possibly contaminated others.
Plaintiff seeks declaratory and injunctive relief in the
form of a court order requiring defendant to provide him with “a
civilian style medicine for pain,” in particular “Oxycodone or
Morphine;” a spine biopsy to determine type of infection; and to
have him “ prepared by liver specialist and infectious disease
specialist”
immediately.”

for

him

“to

undergo

hepatitis

treatment

In addition, he seeks nominal, compensatory, and

punitive damages.
In a prior order, the court converted defendant Aulepp’s
Motion to Dismiss to a Motion for Summary Judgment, gave Mr.
Dalton

time

to

respond

to

defendant’s

motion,

and

notified

plaintiff that in formulating his response he must adhere to the

3

requirements of Rule 56.3
(10th Cir. 2007).

See Kay v. Bemis, 500 F.3d 1214, 1218

Plaintiff was cautioned that a party opposing

a properly supported motion for summary judgment “must set forth
specific

facts

showing

a

genuine

issue

for

trial.”

Id.

Plaintiff was further instructed that in order to adequately
oppose this summary judgment motion, he was required to file a
“Memorandum in Opposition” that included the following.

It must

“begin with a section containing a concise statement of material
facts as to which (he) contends a genuine issue exists;” and
each fact that he claims is in dispute must be numbered and

3

FRCP Rule 56(c) Procedures, provides in pertinent part:
(1) Supporting Factual Positions. 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.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters
stated.
4

“refer with particularity to those portions of the record upon
which (plaintiff) relies.”

He was also informed that he was

required to abide by Subsection (d) of Rule 56.1 (Presentation
of Factual Material), which provides:
All facts on which a motion or opposition is based
must be presented by affidavit, declaration under
penalty of perjury, and/or relevant portions of
pleadings, depositions, answers to interrogatories,
and responses to requests for admissions.
Affidavits
must be made on personal knowledge and by a person
competent to testify to the facts stated that are
admissible in evidence. Where facts referred to in an
affidavit or declaration are contained in another
document that is not already a part of the court file,
a copy of the relevant document must be attached.
Id.

Finally, Mr. Dalton was specifically advised that defendant

Aulepp had raised the affirmative defense of failure to exhaust
and if she met her initial burden of demonstrating that “no
disputed

material

defense,

he

“must

fact

exists

then

regarding”

demonstrate

existence of a disputed material fact.”

with

this

affirmative

specificity

the

Id.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
In her Motion for Summary Judgment, defendant Dr. Aulepp
argues that plaintiff failed to exhaust administrative remedies
on his claims against her concerning conditions at the USPL.
Defendant

asserts

that

as

a

result,

this

dismissed pursuant to 42 U.S.C. § 1997e(a).
5

action

must

be

Defendant argues

additional

grounds

for

dismissal

including

that

she

provided

necessary and proper medical treatment to plaintiff at the times
in question and thus he cannot show deliberate indifference and
establish a violation of the Eight Amendment.

PLAINTIFF’S OPPOSITION TO MOTION
In

opposition

to

defendant’s

motion,

plaintiff

first

addresses her argument that he failed to exhaust administrative
remedies,

which

he

recognizes

as

“their

strongest

argument.”

Plaintiff alleged the following in his complaint with respect to
exhaustion.

He filed a grievance prior to his confinement at

the USPL, and “the most recent remedy” was returned from Central
Office.

He “had a hard time getting grievances answered” at the

USPL and “used all” remedies to no avail prior to filing this
action.

He

grievances.4

stated

that

he

enclosed

the

“most

important”

In his Opposition, plaintiff argues that the USPL

is the third prison he has been housed in since his confinement
began in March 2010 and claims “there is no way to win if they
continue

to

move

you

around.”5

He

also

argues

that

since

4

Plaintiff encloses his 2011 grievance only and none that were filed at
the USPL.
5

Plaintiff also asserts that he has been “denied due process” by his
“inability to stay at one spot.” He ignores that he requested transfers. In
any event he alleges no facts whatsoever to support this claim and generally,
due process is not a prerequisite to inter-prison transfer.
6

defendant Aulepp is an employee of the Bureau of Prisons (BOP)
he was “her responsibility” and he should not have to exhaust
“in-house” administrative remedies at every prison “when it is
all in some file.”

He appears to also argue that exhaustion

should not be required on his claim against Dr. Aulepp in her
individual capacity6 because her duty to protect him under her
“HIPPA oath” is “unrelated to prison standards.”7
With respect to his medical claims, plaintiff makes the
following arguments.
treatment

packet

“FCI Williamsburg” had completed his HCV

“and

already

had

(him)

cleared

through

two

ortho visits saying (he) was okay,” then at the USPL the “same
excuses

come

into

effect.”

It

is

unfair

that

he

has

been

“shifted around” and had to go through the “months long process”
to get the same responses when he has been within the “same
system.”

He is only 23 years old, part of his sentence was to

provide adequate time for him to receive proper medical care.
Instead,

a

“ton

of

testing”

has

been

done

to

establish

his

condition, and his medical issues have not been resolved.

He

“should have received more treatment and not just tests” and
will be released from prison without the medical treatment he

6

Plaintiff appears to concede that his claim fails against defendant in
her official capacity, and it does due to the doctrine of sovereign immunity.
7

This argument simply has no legal merit.
required to exhaust administrative remedies on
employees in their individual capacities.
7

An inmate litigant is
claims against prison

needs.

Defendant Aulepp in her motion falsely accused him of

assaulting another inmate to affect his credibility with the
court and falsely stated that he has had past substance abuse
problems.

However, he has never had an incident report related

to drug use in prison.

He disagrees with defendant’s statement

that he “never had to use narcotics to treat (his) long term
pain” and counters with names of two doctors and pharmacies in
Tennessee who apparently provided narcotic pain medications for
his chronic back pain prior to his incarceration.

He has not

been allowed to take narcotic drugs in prison because he has
never

been

assigned

to

a

Federal

“couldn’t have ever been an issue.”

Medical

Center,

where

it

Finally, plaintiff argues

that he should be provided narcotic pain medications at the USPL
because pain medications are “closely monitored” so there is “no
risk of abuse” and he is willing to sign any type of contract to
receive these medications.

UNDISPUTED FACTS
The court finds the undisputed facts to be as follows.
1.

Plaintiff was incarcerated at the Federal Correctional

Institution in Talladega, Alabama (FCI-Talladega) from March 31,
2010, through February 2, 2012.

He was incarcerated at FCI-

8

Williamsburg in South Carolina, from February 10, 2012 through
July 27, 2012.
2.

He arrived at the USPL on August 29, 2012.

The Federal Bureau of Prisons (BOP) provides a four-

part Administrative Remedy Program designed to address a federal
inmate’s

concerns

confinement.
resolution

regarding

any

aspect

of

his

or

her

First, an inmate is required to attempt informal

of

unsuccessful

the
at

grievance.

this

level,

Second,
then

the

if

the

inmate

grievance

must

file

is
the

complaint with the attached informal resolution to the Warden.
28 C.F.R. § 542.14.

Third, if dissatisfied with the Warden’s

decision,

may

appeal

an

adverse

28

C.F.R.

§

542.15(a).

Regional

the

inmate

Director.

decision

to

Fourth,

the
if

dissatisfied with the Regional Director’s response, the inmate
may

appeal

that

Administrator,

in

Washington D.C.

decision
the

to

Office

the
of

National
the

Inmate

General

Appeals

Counsel

in

Regardless of the level of the appeal, the

inmate must state specifically the reason for his appeal, and he
may not raise any issues not raised at the lower level.

28

C.F.R.

is

§

542.15(b)(1)-(2).

No

administrative

remedy

considered fully and finally exhausted until it has been denied
by the National Administrator.
3.

The

BOP

maintains

a

nationwide

database

of

“all

administrative complaints filed within the BOP’s Administrative
9

Remedy

Program”

known

indicate the following.

as

SENTRY.

Relevant

SENTRY

records

On August 9, 2011, plaintiff initiated

Administrative Remedy No. 651490-F1 at the FCI-Talladega.

He

claimed that Health Services was not providing treatment for his
HCV and a mass on his spine and requested proper treatment.

The

Warden

his

responded

on

August

18,

2011.

regional appeal on September 15, 2011

Plaintiff

filed

He claimed that medical

staff at the FCI-Talladega delayed his HCV treatment for over a
year and indicated “he was willing to sign waivers to start the
process.”

His regional appeal was denied on November 4, 2011.8

On December 6, 2011, while plaintiff was at Talladega, he filed
his appeal to the National Inmate Appeals Administrator.
Doc. 1-1 at 16.

See

He claimed that medical staff should not have

waited until his moods were unstable to evaluate him for HCV
treatment, his treatment should have begun at the start of his
incarceration in March 2010,
condition
8

necessitating

and his HCV is a life-threatening

immediate

treatment.

He

also

argued

Plaintiff attached to his complaint a copy of the response to his
Regional Appeal (No. 651490-R1).
Complaint (Doc. 1-1) at 13.
This
administrative record indicated that plaintiff’s “civilian medical records”
had been received and reviewed by the Clinical Director at Talladega on June
13, 2011.
These records included a 2008 MRI and biopsy that showed “mass
lesions” on plaintiff’s spine that were “negative for acute malignancy and
negative for acute and chronic infection.”
Plaintiff was advised in this
response as to the “many factors” considered in assessing the appropriateness
of, and best timing for, treatment of inmates with chronic HCV infection.
Two contraindications specifically mentioned were unstable mental condition
and relative risks of treatment.
It was noted that plaintiff had been
advised by a BOP psychiatrist in April 2011 that he was not a good candidate
for HCV treatment because his mood was unstable, and that condition had not
improved on new medication as of October 2011.
10

that his chronic thoracic region pain was a “big factor” in his
mood and would be alleviated with stronger pain medications such
as Hydrocodone or Oxycodone.

He asked for these “proper” pain

medications and transfer to “any” Federal Medical Center where
he could get proper “pysch (sic)”, back, and HCV treatment.

The

National Administrator responded on February 15, 2013, that Mr.
Dalton had received standard care and treatment and should seek
medical attention through normal sick call procedures if his
conditions worsened.9
4.

Mr. Dalton was transferred to the USPL prior to his

receipt of the National Appeals Administrator’s response.

He

was first medically evaluated at the USPL on August 29, 2012,
during

his

intake

screening

process.

On

his

Health

Intake

Assessment/History form he “self-reported he had Hepatitis C,
Bi-Polar, Antisocial Personality disorders, history of a head
injury, and pain in his back and knees.”

9

On this date, medical

The National Administrator repeated the findings in the regional
response and found the following.
Mr. Dalton had been advised on November
29, 2011, that due to his mental condition “treatment was not warranted
according to the March 2011 BOP Guidelines, Stepwise Approach for the
Prevention and Treatment of Hepatitis-C and Cirrhosis.”
On July 26, 2012,
Dalton was identified in an administrative note as “currently being worked up
for treatment consideration” and was “awaiting lab results, pending
transfer.”
“[T]he record reflects” that Dalton received standard care and
treatment.
“Given this information,” subsequent “diagnosis and treatment
intervention was “deferred” to the Health Services staff at the local level.”
Doc. 1-1 at 15. Dalton was “advised to follow-up at (his) next institution.”
It was also found that plaintiff was “currently receiving appropriate pain
management for his chronic back pain;” that his transfer to a Federal Medical
Center was unnecessary at that time; and that, according to Dalton’s medical
record of January 22, 2013, he was scheduled to see an orthopedic surgeon for
evaluation.
11

staff screened plaintiff and noted his Hepatitis C condition,
his mental health history, and his current back and knee pain.
They also specifically noted his “significant substance abuse
history,

including

the

use

of

opiates,

methamphetamine,

marijuana, cocaine, and barbiturates.”10
5.

Dr. Aulepp reviewed plaintiff’s chart upon his intake

at the USPL and continued his prescription for Gabapentin per
telephone.

A week later on September 6, 2012, she physically

examined Mr. Dalton.

She noted in the record that he “has a

mostly complete packet (for HCV treatment) that was done at a
previous institution.”

However, she also noticed his history of

abnormal MRI “of the spine” that “may be chronic osteomyelitis”
and the May 2012 recommendation for a “repeat MRI in 6 months.”
She continued plaintiff’s prescription for gabapentin and added
acetaminophen

with

directions

to

use

sparingly.

She

also

ordered lab tests relating to his HCV and the follow-up MRI.11
6.
The

The follow-up MRI was performed on November 1, 2012.

radiologist

performing

this

test

noted

prominent

abnormalities of the spine, and advised that:
10

Plaintiff’s argument that defendant lied about his having “significant
substance abuse history” supported only by his allegation that he has not had
a drug use incident report in prison is refuted by this finding made from his
statements in intake interviews and his medical records.”
11

Many of these facts appear in the exhibits attached to plaintiff’s
complaint as well as Dr. Aulepp’s Declaration provided with the Motion for
Summary Judgment.
12

the primary consideration would be an infectious
process such as discitis and osteomyelitis.
Since
this is reported to be a long-standing problem a
tuberculous or fungal infection need to be considered.
. . .
Dr. Aulepp reviewed this MRI, and on November 2, 2012, “made a
referral to an orthopedic spine surgeon.”
7.

Dr. Aulepp exercised her medical judgment based upon

her knowledge of the following.

Antiviral therapy in the form

of a treatment regimen with Pegylated Interferon and Ribavirin
is very toxic with side effects that include red blood cell and
bone marrow suppression.

Prior to the initiation of antiviral

therapy, it is necessary to ensure that no unusual medical or
mental

health

condition

exists

which

may

interfere

with

the

antiviral therapy or that can be adversely affected by such
treatment.

The use of this treatment is inappropriate when a

bone infection is present.
suppressed
able

to

during

fight

an

Mr. Dalton’s immune system would be

treatments,
active

spreading.

Dr.

Aulepp

treatment

guidelines

bone

preventing
infection

determined
that,

due

in
to

his

body

from

being

and/or

keep

it

accordance

with

BOP

plaintiff’s

from
HCV

unresolved

potential osteomyelitis of the spine, antiviral therapy should
not be initiated when Mr. Dalton first arrived at the USPL and
that delaying such treatment was medically necessary.

13

8.

Plaintiff sent an e-mail to Health Services inquiring

about his MRI results.12

In this e-mail, he also stated:

“The

Gabapentin works well for the nerve pain,” but “the Tylenol just
isn’t cutting it for the bone pain.”
18.

Complaint (Doc. 1-1) at

Defendant responded to plaintiff that the radiologist that

read the MRI felt Dalton had “a longstanding infection” in his
spine, and that he “cannot undergo HCV treatment if there is an
undiagnosed/untreated

infection

in

your

spine.”

She

advised

plaintiff to “please let us work that up and get it treated.”
9.

Plaintiff’s

Aulepp.

Between

spinal

November

condition

was

2012

July

and

evaluated
2013,

by

Dr.

plaintiff

underwent various testing and specialist consultations for his
spinal

condition

to

rule

out

a

potential

on-going

bone

infection.
10.
pain

and

On January 18, 2013, plaintiff complained of his back
asked

transferred.
for consult.”

at

a

clinical

encounter

if

he

could

be

The clinician noted that plaintiff is “scheduled
At an encounter on February 20, 2013, plaintiff

complained that “Gabapentin was not enough for the pain,” and
the

12

clinician

noted

that

plaintiff

was

“waiting

to

see

Plaintiff makes much of the fact that Dr. Aulepp initially responded
they were awaiting the MRI results. This error was resolved, and the record
shows instead that she had actually viewed the results and ordered a consult
within a day of their receipt.
Plaintiff’s implication that her initial
erroneous statement somehow evinces a delay in medical treatment or culpable
motive is frivolous.
14

Orthopedic surgeon.”

Plaintiff was also seen by Dr. Aulepp on

February 20, 2013, for Chronic Care.

Dr. Aulepp again noted

that he “had a possible chronic osteomyelitis that is holding up
his consideration for (HCV) treatment” and an “appointment to
see

the

reported

spine

surgeon

in

that

Pamelor

pain

clinician,

could

not

be

a

couple

days.”

medication,

added

discuss options with plaintiff.

to

Dr.

suggested

Gabapentin

and

Aulepp
by

also

another

she

would

A follow-up visit was scheduled

for August 19, 2013.
11.
admitted

On April 9, 2013, “at an ortho visit” plaintiff was
to

St.

multiple tests.”
12.

Lukes

Hospital,

where

he

“had

to

undergo

He was returned to the USPL on April 11, 2013.

Plaintiff

filed

this

action

a

month

after

this

hospitalization and before his next follow-up appointment with
Dr. Aulepp.
13.

On July 17, 2013, plaintiff had a final repeat MRI

that ruled out ongoing osteomyelitis.
findings.

He was advised of the

Dr. Aulepp considered him for antiviral therapy to

begin in the fall 2013.

Additional lab tests had to be done and

plaintiff’s conditions monitored in order to make adjustments to
treatment.

However, USPL lost its contract phlebotomist and

attempts in the fall of 2013 to find a replacement faltered.

15

Dr.

Aulepp

was

not

involved

in

efforts

to

find

and

hire

a

phlebotomist.
14.

In the meantime, Dr. Aulepp continued to find from

plaintiff’s

laboratory

testing

and

her

examinations

and

observations of him that he did not exhibit an immediate need
for HCV treatment.

Thus, plaintiff was anticipated to start

antiviral therapy in February or March of 2014.

Plaintiff’s

condition continued to be monitored, and Dr. Aulepp considered
new alternative treatments.
15.
and

On February 26, 2014, Dr. Aulepp met with plaintiff

discussed

new

treatment

options

including

Sofosbuvir,

an

alternative oral medication for HCV that had very recently been
approved
likely

by

be

treatment

the

FDA.

available
with

She
within

also

discussed

one

year.

Sofosbuvir,

which

has

others

that

Plaintiff
“around

would

opted
the

for
same

effectiveness as the antiviral therapies, but with fewer side
effects.

The BOP is also examining the potential use of other

alternative oral medications, which have even greater success
rates.
16.
medical

Plaintiff’s case was submitted for evaluation by BOP
staff.

Even

though

plaintiff’s

condition

did

not

indicate that he would have significant decompensation in the
next year, he was approved for treatment with Sofosbuvir based
16

on his elevated liver function tests.

The Sofosbuvir treatment

regime lasts approximately 24 weeks, and requires a medical hold
to

avoid

transfers

monitoring.

Dr.

during
Aulepp

the
found

treatment
at

period

this

time

for

close

that

while

plaintiff’s current HCV condition could benefit from treatment,
it was not in immediate need of treatment and did not appear
likely to worsen within the next year or be impacted by delay.13
17.
previously

Dr. Aulepp provided non-narcotic medications that were
prescribed

for

plaintiff’s

back

pain

and

closely

monitored and counseled him as to his medications during clinic
visits.
18.

After

plaintiff’s

arrival

several administrative remedies.

at

the

USPL,

he

filed

However, SENTRY records show

that he did not file any complaining about the treatment for his
medical conditions provided by Dr. Aulepp at the USPL.

Thus,

when plaintiff filed the instant complaint on May 21, 2013, he
had not filed any administrative grievance regarding his medical
care at the USPL and by Dr. Aulepp.

DISCUSSION
13

The Assistant U.S. Attorney representing defendant in this case
notified the court on December 2, 2014, that a copy of The Withdrawal of
Counsel (Doc. 20) filed by his office and mailed to Mr. Dalton at the USPL
was returned to sender as “No Longer Here,” and a search of the BOP inmate
locator website indicated that Mr. Dalton is incarcerated at the USP-Terre
Haute. Plaintiff did not notify the court of his change of address, and the
court has not been advised as to the current status of his treatment.
17

Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his
administrative remedies prior to filing a lawsuit in federal
court regarding prison conditions.

Section 1997e(a) expressly

provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative
remedies
as
are
available
are
exhausted.
Id.

This exhaustion requirement “is mandatory, and the district

court [is] not authorized to dispense with it.”

Beaudry v.

Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir.
2003), cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607
F.3d 1245, 1249 (10th Cir. 2010).
by

properly

system’s

following

grievance

all

the

The “inmate may only exhaust

steps

out

in

Little,

procedures.”

laid

607

F.3d

(citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)).

the

prison

at

1249

“An inmate

who begins the grievance process but does not complete it is
barred

from

pursuing

a

§

1983

claim.

.

.

.

“

Id.

(citing

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
“Defendants . . . bear the murder or asserting and proving that
the plaintiff did not utilize administrative remedies.”

Tuckel

v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)(citing Jones v.
Bock, 549 U.S. 199, 212 (2007)); Roberts v. Barreras, 484 F.3d
18

1236, 1241 (10th Cir. 2007).

However, “[o]nce a defendant proves

that a plaintiff failed to exhaust, . . . the onus falls on the
plaintiff to show that remedies were unavailable.”

Tuckel, 660

F.3d at 1254.
At the outset the court notes that, in making his opposing
arguments,

plaintiff

does

not

adhere

to

Rule

56

by

citing

“particular parts of materials in the records” such as documents
or declarations.

His allegations that he has been unable to

provide legal citations do not justify this omission.

Neither

Rule 56 nor this court directed plaintiff to counter defendant’s
motion

with

additional

legal

citations.

Plaintiff

does

not

dispute that BOP remedies were available to him at the USPL.
Nor does he present any evidence to dispute defendant’s evidence
that he did not file a grievance regarding his medical treatment
at the USPL by Dr. Aulepp prior to filing this action.14
Instead,

plaintiff

argues

that

he

exhausted

his

administrative remedies by way of the BOP inmate grievance that
he initiated in 2011 at the FCI-Talladega (651490-F1) and that
he

should

be

able

to

rely

upon

the

National

Appeals

Administrator’s response on appeal of that grievance as proof
that he fully exhausted.

However, the complaint in this action

14

Plaintiff’s bald statement in his complaint that he had a hard time
getting grievances answered at the USPL is not supported by any factual
allegations and is called into question by the record, which shows that he
filed several grievances at the USPL on other matters.
19

raises “distinct issue(s)” from the claims raised by Mr. Dalton
in his 2011 grievance.

In his complaint, plaintiff sues Dr.

Aulepp for her alleged failure to immediately begin treatment
for his HCV upon his arrival at the USPL and her continued delay
of treatment as well as for her refusal to prescribe the pain
medications

he

desired.

Even

though

the

underlying

medical

issues are similar to those he raised while at another prison,
“the

similarity

of

issues

alone

is

insufficient

exhaustion of administrative remedies.”

to

satisfy

Barnes v. Allred, 482

Fed.Appx. 308, 312 (10th Cir. 2012)(citing see Ross v. County of
Bernalillo, 365 F.3d 1181, 1188 (10th Cir. 2004)(“Nor does a
grievance

exhaust

administrative

complaints

of

same

the

general

remedies
type.”),

for

all

overruled

on

future
other

grounds by Jones 549 U.S. at 223–24; see also Sayed v. Profitt,
415 Fed.Appx. 946, 949 n.4 (10th Cir. 2011), cert. denied, –––
U.S. ––––,(2011)).
Moreover, plaintiff’s 2011 grievance was filed nearly two
years before his transfer to the USPL and before the treatment
of his conditions by defendant Dr. Aulepp began in August 2012.
Only a grievance filed by plaintiff about his medical treatment
after August 2012 at the USPL would provide prison officials
with information to internally address his claims against Dr.
Aulepp.

“[A]

grievance

satisfies
20

§

1997e(a)’s

exhaustion

requirement so long as it provides prison officials with enough
information to investigate and address the inmate’s complaint
internally.”

Kikumura v. Osagie, 461 F.3d 1269, 1285 (10th Cir.

2006), overruled on other grounds by Robbins v. Okla. ex rel.
Dep’t of Human Servs., 519 F.3d 1242 (10th Cir. 2008).

His 2011

grievance could not have provided such information because the
events upon which the complaint against Aulepp is based had not
yet

occurred.

remedies

occurred.’”
at 1188).

grievance

claims

for

“A

‘cannot

based

on

exhaust

events

that

administrative
have

not

yet

Barnes, 482 Fed.Appx. at 312 (citing Ross, 365 F.3d
In sum, because Dalton’s “BP–9 grievance was filed

prior to the occurrence of those events which form the basis for
his

civil

complaint,

that

grievance

is

insufficient

for

purposes of proving exhaustion of administrative remedies.”

the
Id.

The court concludes that plaintiff has failed to show that
he exhausted administrative remedies based on the actions or
inactions of defendant Aulepp alleged to have occurred during
his confinement at the USPL.

See e.g., Stone v. Albert, 257

Fed.Appx. 96, 100 (10th Cir. 2007) (noting that uncontradicted
affidavit

of

establish

that

remedies).

prison

records

prisoner

Thus,

custodian

failed

plaintiff

has

to

was

exhaust

failed

to

sufficient

to

administrative

show

there

is

a

“genuine issue for trial” as to exhaustion of administrative
21

remedies.
(1986).

See Matsushita Elec. Indus. Co., 475 U.S. 574, 586–87
Accordingly, the motion for summary judgment filed by

defendant

Aulepp

1997e(a)

shall

because

be

plaintiff

granted

pursuant

failed

to

to

exhaust

42
the

U.S.C.

§

available

administrative remedies.
Denial of Medical Treatment Claim
Even if plaintiff

had demonstrated exhaustion, defendant

Aulepp would still be entitled to summary judgment because the
facts as developed in the summary judgment record plainly show
that no Eight Amendment violation occurred.
The United States Supreme Court has held that an inmate
advancing

a

claim

of

cruel

and

unusual

punishment

based

on

inadequate provision of medical care must establish “deliberate
indifference to serious medical needs.”
U.S. 97, 106 (1976).

Estelle v. Gamble, 429

The “deliberate indifference” standard has

two components: an objective component requiring that the pain
or injury be “sufficiently serious”; and a “subjective component
requiring

that

[prison]

culpable state of mind.”

officials

act

with

a

sufficiently

Miller v. Glanz, 948 F.2d 1562, 1569

(10th Cir. 1991); Martinez v. Garden, 430 F.3d 1302, 1304 (10th
Cir. 2005).
show

the

To satisfy the objective component, the inmate must

presence

of

a

“serious

serious illness or injury.”

medical

need,”

that

is,

“a

Estelle, 429 U.S. at 104, 105;
22

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

“The subjective

component is met if a prison official knows of and disregards an
excessive risk to inmate health or safety.”

Martinez, 430 F.3d

at 1304 (citing Sealock v. Colorado, 218 F.3d 1205, 1209 (10th
Cir. 2000)).
“the

In measuring a prison official’s state of mind,

official

must

both

be

aware

of

facts

from

which

the

inference could be drawn that a substantial risk of serious harm
exists, and he (or she) must also draw the inference.”

Id. at

1305 (citing Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
1996)).
“[A]

complaint

that

a

physician

has

been

negligent

in

diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth Amendment.”
Estelle, 429 U.S. at 106; Wilson v. Seiter, 501 U.S. 294, 297
(1991).

Likewise, a mere difference of opinion between the

inmate and prison medical personnel over the adequacy of medical
treatment does not provide the basis for an Eighth Amendment
claim.
F.2d

See Estelle, 429 U.S. at 106–07; Handy v. Price, 996

1064,

1067

(10th

Cir.

1993)(affirming

that

a

quarrel

between a prison inmate and the doctor as to the appropriate
treatment for hepatitis did not successfully raise an Eighth
Amendment claim); Ledoux v. Davies, 961 F.2d 1536 (10th Cir.
1992); El’Amin v. Pearce, 750 F.2d 829, 833 (10th Cir. 1984);
23

Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976)(Where the
complaint

alleges

diagnoses,

and

a

“series

medication,”

of

it

sick

calls,

“cannot

be

examinations,

said

there

was

‘deliberate indifference’ to the prisoner's complaints.”).

a
As

the United States Supreme Court has explained:
[A]n inadvertent failure to provide adequate medical
care cannot be said to constitute “an unnecessary and
wanton infliction of pain” or to be “repugnant to the
conscience of mankind.”
Thus, a complaint that a
physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of
medial
mistreatment
under
the
Eighth
Amendment.
Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical
needs. It is only such indifference that can offend
“evolving standards of decency” in violation of the
Eighth Amendment.
Estelle,
medical

429

U.S.

care—not

at
to

105–106.
the

type

The
or

prisoner’s

scope

of

right

medical

is

to

care

he

personally desires.
The Court has reviewed the extensive records provided by
defendant in support of her motion, treated plaintiff’s verified
complaint as his affidavit, and carefully reviewed the medical
records attached to plaintiff’s complaint.
this

court

assertions

contain
that

ample

plaintiff

evidence

was

provided

The records before

supporting
medical

defendant’s

attention

and

treatment by Dr. Aulepp from the time he arrived at the USPL up
24

to the time this complaint was filed.

Plaintiff’s perception

that he was cleared for and entitled to immediate HCV treatment
upon his arrival at the USPL and his lay opinion that such
treatment was medically necessary during his confinement at the
USPL are not supported in the medical records.
evidence

before

exercised

her

the

court

professional

plainly

shows

medical

The undisputed

that

judgment

Dr.

with

Aulepp

regard

to

plaintiff’s HCV condition, his spine condition, the medicallyappropriate timing of treatment, and his medications.
alleges

no

facts

and

provides

contradict these records.

no

competent

Plaintiff

evidence

to

It follows that plaintiff fails to

state a constitutional claim of denial of medical treatment.
In

addition,

the

record

shows

nothing

more

than

difference of opinion between the wishes of the patient

a
Mr.

Dalton as to his treatment and medications and the professional
diagnosis and treatment provided by defendant Dr. Aulepp.

A

difference of opinion between a physician and a patient does not
amount to a constitutional violation or sustain a claim under §
1983.

Coppinger

v.

Townsend,

398

F.2d

392,

394

(10th

Cir.

1968); see Taylor v. Ortiz, 410 Fed.Appx. 76, 79 (10th Cir.
2010)(upholding
their

summary

undisputed

Interferon

judgment

medical

treatment

a

for

attention
mere

the

rendered

disagreement
25

defendants
the

over

because

denial
the

of

proper

treatment for the plaintiff’s Hepatitis C), cert. denied, –––
U.S.

––––,

131

S.Ct.

2153,

179

L.Ed.2d

939

(2011);

Free

v.

Unknown Officers of the Bureau of Prisons, 103 Fed.Appx. 334,
336–37 (10th Cir. 2004)(holding as a matter of law that the
denial of Interferon to a prisoner with Hepatitis C did not
violate

the

Eighth

Amendment

because

it

involved

a

mere

disagreement over the proper treatment).
Furthermore, plaintiff alleges at most a delay in medical
treatment for his HCV.

In situations where treatment has been

delayed rather than denied altogether, the Tenth Circuit Court
of Appeals requires that the inmate suffered “substantial harm”
as a result of the delay.

Garrett v. Stratman, 254 F.3d 946,

950 (10th Cir. 2001); Olson v. Stotts, 9 F.3d 1475 (10th Cir.
1993).
viral

Mr. Dalton alleges no facts showing that delay of antitreatment

possible

bone

for

his

infection

HCV

for

caused

the
him

purpose

of

substantial

resolving
harm.

a

His

allegation that delay in implementing treatment caused his HCV
to progress and get “worse and more deadly” is nothing more than
a conclusory statement.
was

cleared

as

to

the

On the other hand, even after plaintiff
possible

bone

infection,

Dr.

Aulepp

determined in her medical judgment that plaintiff was not in
need of immediate treatment for his HCV and continued to monitor

26

his condition as well as consider and advise him as to potential
new alternative treatments.
Finally,

plaintiff’s

complaint

regarding

Dr.

Aulepp’s

diagnosis as to the progression of his HCV condition and her
judgment that he was not in need of immediate treatment is at
most a claim of negligence.

The same is true of his complaint

regarding the non-narcotic medications she prescribed for his
back pain.

As noted, negligence does not amount to a federal

constitutional violation.15
The court concludes that, even viewing the uncontroverted
facts in the light most favorable to the plaintiff, a reasonable
jury would not find in favor of plaintiff with respect to his
claim against defendant Aulepp for denying or delaying treatment
for his HCV and back pain.

Accordingly, defendant’s motion for

summary judgment is granted on this additional ground.
IT

IS

THEREFORE

ORDERED

BY

THE

COURT

that

defendant’s

Motion for Summary Judgment (Doc. 15) is sustained, and that
this action is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 19th day of February, 2015, at Topeka, Kansas.

15

A claim that a federal official has acted negligently must be presented
under the Federal Tort Claims Act, which has its own strict exhaustion
prerequisites.
27

s/Sam A. Crow
U. S. Senior District Judge

28