Apodaca v. Corizon Health Care et al

Filing 48

REPORT AND RECOMMENDATIONS by Magistrate Judge Laura Fashing. Objections to R&R due by 3/9/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR ANDREW APODACA, SR.,
Plaintiff,
v.

2:16-cv-00096-MV-LF

CORIZON HEALTH CARE, et al.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on plaintiff Victor Andrew Apodaca’s motion
for a temporary restraining order and preliminary injunction (Doc. 3), filed February 8, 2016; his
(second) motion for a temporary restraining order and preliminary injunction (Doc. 13), filed
March 14, 2016; his motion for leave to file an amended complaint (Doc. 28), filed on April 24,
2017; and his (second) motion for leave to file amended complaint (Doc. 42), filed on January 4,
2018. Defendant Dr. David Birnbaum filed a response to Apodaca’s second motion for leave to
amend on February 2, 2018. Doc. 46. Also before the Court is defendant Dr. David Birnbaum’s
Martinez1 report, including his motion for summary judgment (Doc. 18), filed on May, 14, 2016.
Apodaca filed a response to the Martinez report on May 31, 2016. Doc. 19. The Honorable
Martha Vazquez referred this case to me to conduct hearings, if warranted, including evidentiary
hearings, and to perform any legal analysis required to recommend to the Court an ultimate
disposition of the case. Doc. 5.
Having reviewed the submissions of the parties, and being fully advised, I find that
Apodaca’s motions for a temporary restraining order and preliminary injunction are moot and

1

Martinez v. Aaron, 570 F.2d 317, 319–20 (10th Cir. 1978).

recommend that they be denied. I further find that Apodaca’s motions for leave to file an
amended complaint are not timely and, therefore, recommend that they be denied without
prejudice. Finally, I find that there are no genuine issues of material fact, and that Dr. Birnbaum
is entitled to judgment as a matter of law on Apodaca’s Eighth Amendment claim for failure to
provide adequate medical care. Accordingly, I recommend that Apodaca’s complaint be
dismissed with prejudice.
I.

Background and Procedural Posture
Apodaca suffers from a variety of medical conditions, including Gulf War Illness,2

Hepatitis C, diabetes, hypertension, bipolar disorder, and rheumatoid arthritis.3 Doc. 1 at 5, 10.
On August 19, 2015 Apodaca became an inmate at Lea County Correctional Facility (“LCCF”)
in Hobbs, New Mexico. See Docs. 1 at 1; 18-1 at 1. On May 18, 2017, Apodaca filed a notice of
change of address informing the Court that he was moved from LCCF in Hobbs, to the Northeast
New Mexico Detention Facility (“NENMDF”) in Clayton, New Mexico. Doc. 32. Apodaca
contends that during his incarceration at LCCF, the staff failed to adequately treat his medical
needs. Doc. 1 at 2–5, 9–10. Apodaca filed his complaint for civil rights violations on February
8, 2016. Doc. 1. That same day, Apodaca filed a motion for injunctive relief. Doc. 3. A month
later, on March 14, 2016, Apodaca filed a second motion for injunctive relief. Doc. 13.

2

Although Apodaca claims that he received a diagnosis of Gulf War syndrome, there is no
indication of such a diagnosis in Apodaca’s medical records, and Dr. Birnbaum did not observe
any symptoms or combination of symptoms that would lead him to medically diagnose that
condition. Doc. 18-3 at 3.
3

Apodaca also alleges that he suffers from gastritis, irritable bowel syndrome, chronic fatigue
syndrome, fibromyalgia, and “P.I.” Doc. 1 at 10. There are no medical records that establish
Apodaca has been diagnosed with these conditions, and Apodaca does not make any specific
claims that he was denied treatment for these particular conditions aside from stating that he
suffers from pain symptoms.
2

On April 28, 2016, the Court dismissed several defendants and many of Apodaca’s
claims. Doc. 15. Apodaca’s only remaining claim is that Dr. Birnbaum and his staff were
deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights.
Doc. 15 at 11. The Court held Apodaca’s motions for injunctive relief (Docs. 3 and 13) in
abeyance to the extent that the motions raised Eighth Amendment concerns related to Apodaca’s
medical care. Doc. 16. The Court ordered Dr. Birnbaum to prepare a Martinez report regarding
Apodaca’s medical care and the issues raised in Apodaca’s motions for a temporary restraining
order and preliminary injunction. Id. Dr. Birnbaum filed his Martinez report on May 14, 2016.
Doc. 18. In his Martinez report, Dr. Birnbaum asks for summary judgment on Apodaca’s claim
under the Eighth Amendment. Doc. 18. In addition to responding to the Martinez report, Doc.
19, Apodaca filed two motions for leave to file an amended complaint. Docs. 28, 42. This
report and recommendation addresses all of the outstanding issues.
II.

Apodaca’s Motions for Injunctive Relief are Moot.
“The mootness doctrine provides that although there may be an actual and justiciable

controversy at the time the litigation is commenced, once that controversy ceases to exist, the
federal court must dismiss the action for want of jurisdiction.” Jordan v. Sosa, 654 F.3d 1012,
1023 (10th Cir. 2011). The Court will find mootness “when events outside the litigation make
relief impossible.” Id. There are two kinds of mootness: constitutional mootness and prudential
mootness. Id. “[T]he constitutional mootness doctrine focuses upon whether a definite
controversy exists throughout the litigation and whether conclusive relief may still be conferred
by the court despite the lapse of time and any change of circumstance that may have occurred
since the commencement of the action.” Id. at 1024 (internal citation and quotations omitted).

3

Prudential mootness may apply even where a case is not constitutionally moot if the case
“is so attenuated that considerations of prudence and comity for coordinate branches of
government counsel the court to stay its hand and to withhold relief it has the power to grant.”
Id. (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1121 (10th
Cir.2010)). In general, prudential mootness applies to cases where, like the instant case, a
plaintiff seeks injunctive or declaratory relief. Id. When a plaintiff requests equitable relief, he
or she must demonstrate an adequate basis for that relief. In other words, a plaintiff must
demonstrate “[a] likelihood of substantial and immediate irreparable injury, and the inadequacy
of remedies at law.” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 499 (1974)).
When a prisoner files suit against prison officials who work in the
institution in which he is incarcerated, seeking declaratory and injunctive relief on
the basis of alleged wrongful conduct by those officials, and then that prisoner is
subsequently transferred to another prison or released from the prison system,
courts are presented with a question of possible mootness.
Where the prisoner’s claims for declaratory or injunctive relief relate
solely to the conditions of confinement at the penal institution at which the
prisoner is no longer incarcerated, courts have concluded that they are unable to
provide the prisoner with effective relief. Because a prisoner’s transfer or release
signals the end of the alleged deprivation of his constitutional rights, an entry of
equitable relief in his favor would amount to nothing more than a declaration that
he was wronged, and would have no effect on the defendants’ behavior towards
him. Consequently, courts have routinely dismissed such penitentiary-specific
conditions-of-confinement claims as moot.
Id. at 1027 (internal citations and quotations omitted).
Apodaca’s motions for injunctive relief relate solely to the conditions of his confinement
at the LCCF. In his first motion, Apodaca alleges that Dr. Birnbaum had taken him off of
necessary medications and advised Apodaca that he would only be seen every 90 days regardless
of the number of requests for medical care. Doc. 3 at 1. Apodaca seeks a temporary restraining
order requiring the defendants to have him examined and treated by a “qualified specialist” and a

4

preliminary injunction requiring them to carry out the specialist’s treatment plan. Id. at 2. In his
second motion, Apodaca alleges that he is being retaliated against for using the court system and
asks for a restraining order and preliminary injunction requiring the defendants to abide by the
law, give him full access to the courts, and to stop retaliating against him. Doc. 13 at 2–3.
On May 18, 2017, Apodaca filed a notice of change of address informing the Court that
he was moved from LCCF in Hobbs, New Mexico, to the NENMDF in Clayton, New Mexico.
Doc. 32. Since May of 2017, therefore, Apodaca has not been subject to medical decisions made
by Dr. Birnbaum, nor has he been denied access to the courts or subjected to any alleged
retaliation by LCCF staff because he no longer resides at that facility. Accordingly, an entry of
equitable relief in his favor would amount to nothing more than a declaration that he was
wronged, and would have no effect on the defendants’ behavior towards him.4 See Green v.
Branson, 108 F.3d 1296, 1300 (10th Cir. 1997). Because the entry of injunctive relief in
Apodaca’s favor would have no effect on the defendants’ behavior, I recommend that Apodaca’s
motions for a temporary restraining order and preliminary injunction (Docs. 3 and 13) be denied
as moot.
In contrast, Apodaca’s claims for damages remain viable “because a judgment for
damages would alter the defendants’ behavior by forcing them to pay an amount of
money they otherwise would not have paid.” Green, 108 F.3d at 1300. Accordingly, the
merits of Apodaca’s Eighth Amendment claim are analyzed in section IV below,
pursuant to Dr. Birnbaum’s motion for summary judgment.

4

The relief sought in Apodaca’s second motion for injunctive relief is also moot because his
claim for denial to access to the courts has been dismissed by Judge Vazquez, and Apodaca did
not amend his complaint to raise a claim for retaliation. Doc. 15 at 6–9, 12.
5

III.

Apodaca’s Motions to Amend Should be Denied.
Rule 15(a) of the Federal Rules of Civil Procedure, which governs the amendment of

pleadings, provides in relevant part that “[a] party may amend its pleading once as a matter of
course within . . . 21 days after serving it.” FED. R. CIV. P. 15(a)(1)(A). Any additional
amendments require the opposing party’s written consent or the Court’s leave. See FED. R. CIV.
P. 15(a)(1)(B). Local Rule 15.1 requires a proposed amended complaint to accompany a motion
to amend. See D.N.M.LR-Civ. 15.1 (“A proposed amendment to a pleading must accompany the
motion to amend.”).
Apodaca filed two motions to amend, Doc. 28, filed April 24, 2017, and Doc. 42, filed
January 4, 2018. In his motions to amend, Apodaca contends that his original complaint
“name[s] a John or Jane Doe defendant by et. al,” Doc. 28 at 1; Doc. 42 at 1, and that he is
seeking amendments to name these additional parties. This attempt to add parties by amendment
is without merit. First, Apodaca is incorrect. His original complaint named specific parties and
did not name any type of “Doe” defendant or state “et al.” in the caption. Doc. 1 at 1. Indeed,
the form he filled out to instigate this lawsuit instructs, “Do not use et al.” Id.
Second, the motions to amend are untimely and unduly prejudicial to Dr. Birnbaum. In
Dr. Birnbaum’s response to Apodaca’s second motion for leave to file an amended complaint, he
argues that the proposed amendment is based on separate facts and circumstances than those in
the original complaint and do not have any relationship to the facts in the original complaint.
Doc. 46 at 4–5. Further, a Martinez report has already been completed, and any amendment at
this point would unfairly prejudice Dr. Birnbaum. Id. at 5–6. I agree with Dr. Birnbaum.
Refusing leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of
amendment. It is well settled in this circuit that untimeliness alone is a sufficient
6

reason to deny leave to amend, especially when the party filing the motion has no
adequate explanation for the delay. Furthermore, where the party seeking
amendment knows or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original complaint, the motion
to amend is subject to denial.
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365–66 (10th Cir.1993) (internal citations and quotation
marks omitted). To the extent Apodaca is attempting to add allegations and claims against Dr.
Birnbaum, that amendment should not be allowed because Apodaca had the opportunity to
amend his complaint within a month after Judge Vazquez filed her Memorandum Opinion and
Order on April 28, 2016. Apodaca did not timely file an amended complaint or a motion seeking
leave to amend. Instead, Apodaca filed his first motion to amend almost a year after the
expiration of the Court’s deadline, on April 24, 2017, and his second motion to amend a year and
nine months after the Court’s deadline, on January 4, 2018. As Dr. Birnbaum points out:
Undue delay is especially relevant here because some of the events underlying the
proposed second [amended complaint] allegedly occurred in September 2015.
Thus, Plaintiff knew of the facts well before he filed his original complaint of
February 8, 2016, and certainly before the Court accepted his first amended
complaint. Plaintiff has been aware of the events described in the proposed
second amended complaint, and the identities of all persons allegedly involved in
those events since October 2016.
Doc. 46 at 6. Apodaca’s motions to amend are untimely, and he has not provided any
explanation for the delay.
Third, Apodaca is not seeking to simply amend his complaint; he is attempting to
supplement his complaint. The allegations in his proposed complaints, although still discussing
the alleged lack of medical care, discuss new events and actions of newly named defendants not
alleged in the original complaint. See Doc. 28 at 2–7; Doc. 42 at 2–7. The new defendants
would include medical providers Lewis Ortega, Charlet Bradshaw, Emily Collopy, as well as
Centurion, Centurion CEO Steve Wheeler, GEO Executive V.P., Ernesto Alvarez, GEO Risk

7

Management V.P. Philip Dugger, and GEO Western Region V.P., James Black. Id. New events
include an untreated molar abscess in October of 2016, removal of his “depression medication”
in November of 2016, a broken foot, and lack of insulin. Docs. 28 at 2–3, 6; 42 at 3–4, 6.
Rule 15(d) governs the supplementation of pleadings and it provides as follows:
On motion and reasonable notice, the court may, on just terms, permit a
party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented. The court
may permit supplementation even though the original pleading is defective in
stating a claim or defense. The court may order that the opposing party plead to
the supplemental pleading within a specified time.
FED. R. CIV. P. 15(d). “Rule 15(d) gives trial courts broad discretion to permit a party to serve a
supplemental pleading setting forth post-complaint transactions, occurrences or events.” Walker
v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). Rule 15(d) motions “are
addressed to the sound discretion of the trial court,” but such motions “should be liberally
granted unless good reason exists for denying leave, such as prejudice to the defendants.” Id.
I find that allowing Apodaca to supplement his pleadings with new parties and
allegations pertaining to new events would be unfairly prejudicial to Dr. Birnbaum as well as the
newly named defendants. Dr. Birnbaum submitted a Martinez report and a motion for summary
judgment with regard to Apodaca’s sole remaining claim under the Eighth Amendment on May
14, 2016. Doc. 18. Apodaca filed his first motion to amend almost a year after the Martinez
report, on April 24, 2017. Doc. 28. If the Court allows Apodaca to supplement his pleadings to
include new allegations against Dr. Birnbaum, Dr. Birnbaum would be required to respond to the
supplemental pleadings, re-review Apodaca’s medical records, reevaluate Apodaca’s claims, and
rewrite the Martinez report. At this stage in the proceedings, it is unfair to cause Dr. Birnbaum
to start over with this case.

8

Allowing Apodaca to initiate what is essentially a new lawsuit at this point in the
proceedings also would run afoul of the screening process in 28 U.S.C. § 1915. In 1996,
Congress significantly amended § 1915, which establishes the criteria for allowing an action to
proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as
amended) requires the federal courts to review complaints filed by persons that are proceeding
IFP and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). “Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen
a complaint filed IFP and dismiss the case at any time if the court determines that the action or
appeal is frivolous or malicious or fails to state a claim on which relief may be granted.”
Creamer v. Kelly, 599 F. App’x 336 (10th Cir. 2015) (unpublished) (internal quotation and
citation omitted) (emphasis added). In addition, 28 U.S.C. § 1915A, entitled “Screening,”
requires the court to review complaints filed by prisoners seeking redress from a governmental
entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). If the
complaint is “frivolous, malicious, or fails to state a claim upon which relief can be granted,” or
“seeks monetary relief from a defendant who is immune from such relief,” the court must
dismiss the complaint. 28 U.S.C. § 1915A(b).
Further, the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, requires the
court “on its own motion or on the motion of a party” to dismiss any action brought by a prisoner
with respect to prison conditions under 42 U.S.C. § 1983 if the action is “frivolous, malicious,
fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant
who is immune from such relief.” See 42 U.S.C. § 1997e(c)(1), unconst’l on other grounds,
Siggers-El v. Barlow, 433 F. Supp. 2d 811, 813 (E.D. Mich. 2006) (unconstitutional to the extent

9

that it precludes mental or emotional damages as a result of defendant’s violation of plaintiff’s
First Amendment rights). Apodaca is considered a “prisoner” as that term is defined under the
Prisoner Litigation Reform Act, see 28 U.S.C. §§ 1915(h), 1915A(c), and he has been granted
leave to proceed IFP in this action, Doc. 10. The defendants named in the proposed amended
complaints are employees of a governmental entity. See West v. Atkins, 487 U.S. 42, 54–55
(1988) (a physician under contract with the state to provide medical services to state prison
inmates, acted under color of state law for purposes of § 1983 when undertaking his duties in
treating prisoner’s injury). Additionally, Apodaca is complaining about the conditions of his
confinement. Thus, his amended complaint must be reviewed under the authority set forth
above.
If the Court were to simply allow Apodaca to amend or supplement his complaint with
entirely new parties and allegations, it would bypass the screening process required under 28
U.S.C. § 1915. The newly named parties would be responsible for answering the amended
complaint without the benefit of the Court first determining whether Apodaca’s claims are
frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is
immune from such relief.
Although I find that Apodaca should not be able to bring new parties, allegations, and
claims into the instant lawsuit, that is not to say that he fails to state a claim. As discussed
above, the merits of the claims raised in the proposed amended complaints have not been
screened or analyzed by this Court. Accordingly, I recommend that Apodaca’s motions to
amend his complaint (Docs. 28 and 42) be denied without prejudice.

10

IV.

The Court Should Grant Dr. Birnbaum’s Motion for Summary Judgment.
A. Standard for Summary Judgement
Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled as a matter of law.” FED. R. CIV. P. 56(a). The party moving for
summary judgment has the initial burden of establishing, through admissible evidence in the
form of depositions, answers to interrogatories, admissions, affidavits or documentary evidence,
that there is an absence of evidence to support the opposing party’s case. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If this burden is met, the party opposing summary judgment
must come forward with specific facts, supported by admissible evidence, which demonstrate the
presence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49
(1986). Although all facts are construed in favor of the nonmoving party, it still is the
nonmoving party’s responsibility to “go beyond the pleadings and designate specific facts so as
to make a showing sufficient to establish the existence of an element essential to [his] case in
order to survive summary judgment.” Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005)
(alteration in original) (internal quotation marks omitted).
For purposes of summary judgment, a prisoner’s complaint is treated as an affidavit if it
alleges facts based on his personal knowledge and has been sworn under penalty of perjury.
Hall, 935 F.2d at 1111. A Martinez report is also treated as an affidavit. Id. A court cannot
resolve material disputed factual issues by accepting a Martinez report’s factual findings when
they are in conflict with pleadings or affidavits. Id. at 1109. Conclusory allegations, however,
without specific supporting facts, have no probative value and cannot create a genuine issue of
fact. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143 (10th Cir. 2005); Annett v. Univ.
of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004); Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.

11

1992). As is true with all affidavits, statements of mere belief must be disregarded. Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006).
The Court liberally construes Apodaca’s filings because he is appearing pro se. Hall, 935
F.2d at 1110. Nevertheless, a non-moving party still must “identify specific facts that show the
existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160,
1164 (10th Cir. 2000) (internal quotation marks omitted). Conclusory allegations are insufficient
to establish an issue of fact that would defeat the motion. Harrison v. Wahatoyas, L.L.C., 253
F.3d 552, 557 (10th Cir. 2001).
B. Apodaca’s Eighth Amendment Claims are Without Merit.
“A prison official violates an inmate’s clearly established Eighth Amendment rights if he
acts with deliberate indifference to an inmate’s serious medical needs—if he knows of and
disregards an excessive risk to inmate health or safety.” Garrett v. Stratman, 254 F.3d 946, 949
(10th Cir. 2001) (internal quotation marks omitted). Stated differently, prison officials violate
the Eighth Amendment’s ban on cruel and unusual punishment if their deliberate indifference to
serious medical needs of a prisoner constitutes unnecessary and wanton infliction of pain. Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
An Eighth Amendment claim of deliberate indifference to serious medical needs requires
the plaintiff to demonstrate “both an objective and a subjective component.” Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Under the objective inquiry, the “alleged
deprivation must be ‘sufficiently serious’ to constitute a deprivation of constitutional
dimension.” Self, 439 F.3d at 1230 (citing Farmer v. Brennan, 511 U.S. 825, 834, (1994)).
Where an Eighth Amendment claim is premised on an alleged delay in medical care, the prisoner
“must ‘show that the delay resulted in substantial harm’ in order to satisfy the objective prong of

12

the deliberate indifference test.” Al-Turki v. Robinson, 762 F.3d 1188, 1192–93 (10th Cir. 2014)
(quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)).
The subjective component requires “evidence of the prison official’s culpable state of
mind.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). The subjective component may be
fulfilled by showing that the official “[knew] of and disregard[ed] an excessive risk to inmate
health or safety.” Id. That is, the prisoner must show that the defendant knew “[that the
prisoner] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal
quotation marks omitted); see Martinez v. Garden, 430 F.3d 1302, 1304–05 (10th Cir. 2005).
The pertinent question is whether the prisoner’s symptoms were such that the defendant “knew
the risk to the prisoner and chose (recklessly) to disregard it.” Mata, 427 F.3d at 753.
Apodaca contends that the medical care was defective in several ways. First, he contends
that the medical staff only saw him every 90 days “no matter how many sick calls I put in.” Doc.
1 at 4; see also Doc. 3 at 2.5 Also, he contends that there has been a delay in filling his
prescriptions for high blood pressure and pain medications. Docs. 1 at 5; 3 at 1. Apodaca
further alleges that he was denied medication necessary to treat his medical conditions. Docs. 1
at 9– 10; 3 at 1. Specifically, Apodaca contends that Dr. Birnbaum stopped prescribing
Neurontin, Lisinopril, simvastatin, and chlorpheniramine. Doc. 3 at 1.
The evidence presented by both Dr. Birnbaum and Apodaca show that since his arrival at
LCCF, Apodaca was treated frequently for a variety of ailments. For example, the day after
Apodaca arrived at LCCF, on August 20, 2015, he was seen at intake for a medical and mental

5

Although Doc. 3 is a motion and not his complaint, it is based on Apodaca’s personal
knowledge and has been sworn under penalty of perjury. Doc. 3 at 2. The Court, therefore, will
treat Doc. 3 as an affidavit as well.
13

health review. Docs. 18-1 at 3–4; 18-3 at 2; 19-1 at 10. At that time Apodaca had diabetes,
hypertension, high triglycerides, and low HDL, indicating that Apodaca is at high risk of heart
attack or stroke. Docs. 18-1 at 1–3; 18-3 at 2; 19-1 at 10. Apodaca also has chronic hepatitis C.
Docs. 1 at 10; 18-3 at 2. Apodaca was taking the following medications: Wellbutrin, Remeron,
and Neurontin. Docs. 18-1 at 4–5; 18-3 at 2. The medical staff referred Apodaca to receive
regular, chronic care treatment for his mental health, and it was noted that he had been diagnosed
with a history of PTSD. Doc. 18-1 at 4. Consequently, the staff scheduled Apodaca for a mental
health appointment on September 1, 2015. Id.
Following this initial assessment, it appears that Dr. Birnbaum and the medical staff were
quite responsive to Apodaca’s requests for medical care from August 19, 2015, through March
28, 2016.6 This can best be demonstrated in a chart showing Apodaca’s medical history at
LCCF:
Date:
8/19/15
8/20/15

Event/Health Service Request:
Apodaca arrives at LCCF. Doc. 18-1 at 1.
Apodaca is seen for his intake medical and
mental health review. Docs.18-1 at 1–3;
18-3 at 2; 19-1 at 10.

LCCF response and treatment:
Apodaca has diabetes,
hypertension, high triglycerides
and low HDL. These conditions
resulted in a diagnosis of
metabolic syndrome, indicating
Apodaca is at a high risk of heart
attack or stroke. It is noted
Apodaca has chronic hepatitis C.
Doc. 18-3 at 2.
Apodaca also is seen by a mental
health professional and a future
appointment is scheduled for
9/31/15. Docs. 18-1 at 1–4; 18-3
at 2.

6

Neither the Martinez report nor Apodaca’s response provides medical records beyond March
28, 2016.
14

8/21/15

Apodaca submits a health services request
form seeking renewal of prescriptions.
Docs. 18-1 at 6; 18-3 at 2–3; 19-1 at 11.

8/28/15

Apodaca submits a health services request
form regarding medications. Docs. 18-1 at
8-10; 18-3at 3; 19-1at 13.

8/31/15

9/1/15

9/9/15

Apodaca submits a health services request
form for pain complaints. Docs. 18-1 at
23; 18-3 at 4–5; 19-1 at 15.

9/17/15

10/7/ 15

Apodaca submits a health services request
regarding allergy medications (eye drops
and nasal spray). Docs. 18-1 at 28; 18-3 at
5; 19-1 at 14.

10/10/15

Apodaca submits a health services request
form to formulate a treatment plan for his
Gulf War illness. Doc. 19 at 22.

15

The nurse scheduled an
appointment for 8/23/15 but he
“refused to come.” Docs. 18-1 at
6; 18-3 at 2–3; 19-1 at 11.
Apodaca is seen on 8/28/15. Doc.
18-1 at 8–10. Apodaca alleges that
he has Gulf War syndrome but
there is no indication of that
diagnosis in the medical records,
and Dr. Birnbaum did not observe
any symptoms that would lead him
to medically diagnose that
condition. Doc. 18-3 at 3.
Apodaca underwent a physical
examination. Docs. 18-1 at 14–15;
18-3 at 4.
Apodaca attends a mental health
chronic care appointment. Docs.
18-1 at 16; 18-3 at 4.
Apodaca was triaged by a nurse on
9/10/15, who determined that
Apodaca’s condition was not
urgent, and he was scheduled to be
seen by an upper level medical
provider on 9/17/15. Docs. 18-1 at
23; 18-3 at 4–5; 19-1 at 15.
Apodaca was seen for a
medication renewal based on his
complaints of arthritis pain. Docs.
18-1 at 24; 18-3 at 5; 19-1 at 12,
15.
Medical staff reviewed the request
on 10/10/15 and determined that
Apodaca received his eye drops on
9/10/15, and the nasal spray was
no longer available. The request
was forwarded to upper level
medical provider for further
review. Docs. 18-1 at 28; 18-3 at
5; 19-1 at 14.
The request was reviewed by a
triage nurse on 10/12/15. Doc. 19
at 22. On 10/15/15, it appears that
Apodaca refused treatment based
on his 10/10/15 request. Doc. 19-1
at 1.

10/16/15

10/21/15

11/2/15

11/6/15

11/23/15

11/29/15

12/1/15

Apodaca is seen for mental health
treatment. At that time he was
doing “pretty good” and taking all
of his medications. Docs. 18-1 at
30; 18-3 at 5.
Apodaca submits a health services request Medical staff notes that
form regarding allergy medications. Docs. prescriptions have expired and
18-2 at 1; 18-3 at 6; 19-1 at 16.
they scheduled an appointment for
10/26/15.7 Docs. 18-2 at 1; 19-1 at
16.
Apodaca submits a health services request Medical staff scheduled an
for prescription renewal. Docs. 18-2 at 4;
appointment for Apodaca for
18-3 at 6; 19-1 at 17.
11/9/15.7 Docs. 18-2 at 4; 18-3 at
6; 19-1 at 17.
Apodaca submits a health services request Medical staff scheduled an
regarding his eyesight. Docs. 18-2 at 5;
appointment for Apodaca for
18-3 at 6; 19-1 at 18.
11/16/15.7 Docs. 18-2 at 5; 18-3 at
6; 19-1 at 18.
Apodaca submits a health services request Apodaca was already scheduled
form regarding allergy medications, pain in for his chronic care appointment
his back, and blurred vision. Docs. 18-2 at on 11/27/15, and was to be seen at
6; 18-3 at 6; 19-1 at 20.
that time. Docs. 18-2 at 6; 18-3 at
6–7; 19-1 at 20. The appointment
was moved to 11/30/15.7 Doc. 182 at 6-7; 18-3 at 7.
Apodaca submits a health services request Apodaca is seen and treated on
form for a cut on his left big toe. Doc. 19- 12/1/15, and an appointment was
1 at 21.
made for 12/7/15. Doc. 19-1 at 21.
Apodaca attended a mental health
appointment. Docs. 18-2 at 8–9;
18-3 at 7. Dr. Nielson advised
Apodaca regarding the
discontinuance of gabapentin
(Neurontin) used by Apodaca for
pain relief. Dr. Nielson referred
Apodaca to his medical primary
care physician for a prescription
for neuropathy. Other
prescriptions were renewed. Id.

7

There is no indication in the medical records that Apodaca attended the appointments set by the
medical staff on these dates. Doc. 18-3 at 6. Apodaca contends that he never missed an
appointment. Doc. 19 at 5. Because all facts are to be construed in favor of Apodaca for
summary judgment purposes, the Court will construe the facts to establish that Apodaca attended
the appointments that were scheduled following his health service requests on these dates.
16

12/7/15

12/12/15
1/2/169

Apodaca submits a health services request
form seeking an appointment for being
removed from Neurontin. Docs. 18-2 at
14; 18-3 at 8.

1/5/16

Apodaca submits a health services request
form seeking renewal of cholesterol and
high blood pressure medications. Apodaca
contends that he has not had these
medications for two months. Docs. 18-2 at
15; Doc. 18-3 at 8.

1/11/16

1/12/16

Apodaca submits a health services request
form complaining that Dr. Birnbaum
removed him from his medications and
refused to see him. Doc. 18-2 at 16; 18-3
at 9.

Apodaca attends a chronic care
appointment. Docs. 18-2 at 9–10;
18-3 at 7–8. A nurse practitioner
discontinues Mobic to treat
Apodaca with a different NSAID8
to see if it provided him more
relief for his pain complaints. Id.
Apodaca attends a diabetic eye
exam. Doc. 18-2 at 11; 18-3 at 8.
The nurse called Apodaca on
1/4/16, then referred him to Dr.
Birnbaum to discuss the matter at
an upcoming appointment on
1/11/16. Docs. 18-2 at 14; 18-3 at
8.
The triage nurse notes the
prescriptions are expired and that
Apodaca has an appointment on
1/11/16. Docs. 18-2 at 15; 18-3 at
8.
Dr. Birnbaum renews Apodaca’s
cholesterol and high blood
pressure medications and they
were received by Apodaca on
1/18/16. Docs. 18-2 at 9, 21; 18-3
at 8.
Apodaca was seen by medical staff
on 1/13/16. Doc. 18-2 at 16. The
nurse told Apodaca that he was not
receiving Neurontin because he did
not have a diagnosis for
neuropathy.

8

Nonsteroidal anti-inflammatory drugs (NSAIDs) are some of the most commonly used pain
medicines in adults. They are also a common treatment for chronic (long-term) health problems,
such as arthritis (rheumatoid arthritis, osteoarthritis, and others) and lupus.
https://www.rheumatology.org/I-Am-A/Patient-Caregiver/Treatments/NSAIDs, last visited
February 7, 2018.
9

The health services request form is dated “1-2-15,” but that date is obviously a typo because
Apodaca did not arrive at LCCF until 8/19/15.
17

1/19/16

Apodaca submits a health services request
form complaining of pain in his lower
back, pelvis, foot, neck, hands, feet, and
joints. Docs. 18-2 at 17; 18-3 at 9.

3/1/16

3/14/16

3/21/16

18

Dr. Birnbaum explains in his
affidavit that Apodaca does
complain of neuropic pain but this
condition is not definitively
confirmed. Regardless, however,
Apodaca was not prescribed
Neurontin because of the NMCD
(New Mexico Corrections
Department) directive to not do so
because of the high risk of abuse
of this drug. Apodaca was
provided other medications to
address his pain complaints. Doc.
18-3 at 9.
Apodaca was seen on 1/20/16 and
informed of why he was not being
prescribed Neurontin. Apodaca
had no new or additional problems.
Docs. 18-2 at 17; 18-3 at 9.
Dr. Nielson sees Apodaca for a
mental health chronic care visit.
Apodaca indicated he was feeling
fine and had no problems with his
psychiatric medication. Dr.
Nielson renewed Apodaca’s
prescriptions and scheduled
another appointment in 12 weeks.
Docs. 18-2 at 18, 18-3 at 9.
Apodaca attends a chronic care
appointment with Dr. Birnbaum.
At that time, Dr. Birnbaum
prescribed yet another medication
to address Apodaca’s pain
symptoms and scheduled another
chronic care visit. Docs. 18-2 at
27–28, 18-3 at 10.
Dr. Birnbaum referred Apodaca to
the infectious disease nurse for
evaluation of hepatitis C. At the
time Dr. Birnbaum wrote the
affidavit, Apodaca was waiting to
be scheduled for evaluation. Docs.
18-2 at 28; 18-3 at 10.

3/28/16

Apodaca submitted a health services
request form seeking renewal of all of his
medications. Docs. 18-2 at 29, 18-3 at 10.

All medications were approved for
renewal except Apodaca’s
prescription for eye drops was
pending. At the time of Dr.
Birnbaum’s affidavit, Apodaca
was receiving all medications
prescribed for him on 3/1/16 and
3/14/16. Docs. 18-2 at 29; 18-3 at
10.

Apodaca cannot establish either the objective or subjective component of his Eighth
Amendment claim. First, he does not establish the objective prong because he fails to establish
that he suffered any substantial harm that resulted in a lifelong handicap, permanent loss, or
considerable pain. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (“The substantial harm
requirement “may be satisfied by lifelong handicap, permanent loss, or considerable pain.”).
Although Apodaca has medical conditions that require treatment, there is no indication that Dr.
Birnbaum or his staff failed to provide treatment. As seen from the chart above, LCCF was
responsive, usually within a few days, of Apodaca’s request for medical services, and treated his
chronic conditions. Apodaca’s chronic conditions have remained stable and have not presented
an urgent or emergent care situation, despite alleged delays in getting prescriptions filled or
being seen by a medical care provider.
Even if Apodaca’s complaints of pain could establish the objective component, he cannot
establish the subjective component. That is, Apodaca cannot establish that he faced a substantial
risk of harm that was known to Dr. Birnbaum and his staff, and that Dr. Birnbaum or his staff
disregarded that risk or failed to take reasonable measure to abate it. Callahan, 471 F.3d at
1159. Neither Dr. Birnbaum nor his staff acted or failed to act despite their knowledge of a
substantial risk of serious harm to Apodaca.

19

In appears Apodaca’s primary complaint regarding his medical care is that he was taken
off Neurontin (gabapentin). See Docs. 1 at 10; 1-2 at 18; 1-3 at 10; 1-5 at 1–2; 3 at 1; 18-2 at 14;
18-3 at 8; 19 at 2, 6; 19-2 at 13–14; 19-4 at 12; 19-5 at 9–10; but see 19-4 at 11 (Apodaca’s
inmate grievance form in which he insists that “it’s not about the Neurontin itself, it’s about
violating my 8th Amendment right to be free from cruel and [unusual] punishment by one not
consulting with me and replacement of said medication . . . .”).10 Dr. Nielson advised Apodaca
that he was going to discontinue gabapentin as a therapeutic option. Docs. 18-2 at 8; 18-3 at 7.
Dr. Birnbaum explains that he understood that “due to multiple instances of diversion and abuse
of gabapentin in the prison setting, NMCD directed that this particular medication was no longer
a treatment option.” Doc. 18-3 at 7. The medical staff explained to Apodaca why he was no
longer allowed Neurontin, and he was provided with other medications to address his pain
complaints. Id. at 7–9. While Apodaca disagreed with this prescribed course of treatment, he
continued to be treated for his pain complaints and, therefore, fails to state a constitutional
violation for removing Neurontin as a treatment option. See Perkins v. Kansas Dep’t of Corr.,
165 F.3d 803, 811 (10th Cir. 1999) (“a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation”).
The undisputed material facts establish that neither Dr. Birnbaum nor his staff was
deliberately indifferent to Apodaca’s serious medical needs. Dr. Birnbaum is entitled to
judgment as a matter of law. Accordingly, I recommend that Apodaca’s complaint be dismissed
with prejudice.

10

Dr. Birnbaum testifies in his affidavit that when medical staff saw Apodaca on January 13,
2016, he told them that he would dismiss his complaints regarding his medical care if his
Neurontin was re-instated. Doc. 18-3 at 9. Apodaca vehemently denies that he ever said such a
thing. Doc. 19 at 5. Regardless, from the statements in his filings, it is clear Apodaca is
frustrated that he was unable to get Neurontin while he was incarcerated at LCCF.
20

V.

Recommendation

For the reasons stated above, I recommend that:
1) Apodaca’s motion for a temporary restraining order and preliminary injunction (Doc. 3),
filed February 8, 2016, and his (second) motion for a temporary restraining order and
preliminary injunction (Doc. 13), filed March 14, 2016, be DENIED as moot.
2) Apodaca’s motion for leave to file an amended complaint (Doc. 28), filed on April 24,
2017, and Apodaca’s (second) motion for leave to file amended complaint (Doc. 42),
filed on January 4, 2018, be DENIED without prejudice;
3) Defendant Dr. David Birnbaum’s motion for summary judgment (Doc. 18), filed on May,
14, 2016, be GRANTED; and
4) Apodaca’s complaint (Doc. 1), filed February 8, 2016, be DISMISSED with prejudice.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1)(C). A party
must file any objections with the Clerk of the District Court within the fourteen-day period if that
party wants to have appellate review of the proposed findings and recommended disposition. If
no objections are filed, no appellate review will be allowed.

_____________________________
Laura Fashing
United States Magistrate Judge

21