Baker v. Turley et al

Filing 67

MEMORANDUM DECISION AND ORDER granting 54 Motion for Summary Judgment. The inadequate-medical-care claims are DISMISSED WITH PREJUDICE. All other Defendants and claims having been dismissed in past orders, this action is CLOSED. Signed by Judge Clark Waddoups on 3/5/20. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ROBERT R. BAKER,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

v.
Case No. 2:15-CV-668-CW
SIDNEY ROBERTS et al.,
District Judge Clark Waddoups
Defendants.

Plaintiff, Robert R. Baker, asserts that Defendants Tubbs, Clark, Jeffries, Stone, Roberts,
Coombs, and Merrill violated his right to be free of cruel and unusual punishment under the
United States Constitution's Eighth Amendment. See 42 U.S.C.S. § 1983 (2020). Specifically, he
contends Defendants provided inadequate medical care during his stay at Utah State Prison
(USP). (ECF. No. 13.)
Defendants filed a Martinez report 1 with medical and other records and declarations as to
Plaintiff’s treatment. (ECF Nos. 49-50.) Plaintiff’s evidentiary response to the Martinez report

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See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court’s practice of ordering prison
administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging
constitutional violation against institution officials).
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained a Martinez report's function:
Under the Martinez procedure, the district judge . . . to whom the matter has
been referred will direct prison officials to respond in writing to the various
allegations, supporting their response by affidavits and copies of internal
disciplinary rules and reports. The purpose of the Martinez report is to ascertain
whether there is a factual as well as a legal basis for the prisoner's claims. This,
of course, will allow the court to dig beneath the conclusional allegations. These
reports have proved useful to determine whether the case is so devoid of merit as
to warrant dismissal without trial.
Id. at 1007.

primarily consists of receipts and medical documents--none of which fall within relevant dates
regarding remaining claims. 2 (ECF No. 57.) The Court has examined them all thoroughly.
Defendant now moves for summary judgment based on statute of limitations and
qualified immunity.
I. STATUTE OF LIMITATIONS
“Utah’s four-year residual statute of limitations . . . governs suits brought under
[§] 1983.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). And “[a]ctions under § 1983
normally accrue on the date of the [alleged] constitutional violation,” Garza v. Burnett, 672 F.3d
1217, 1219 (10th Cir. 2012), as § 1983 claims “accrue when the plaintiff knows or has reason to
know of the injury that is the basis of the action.” Workman v. Jordan, 32 F.3d 475, 482 (10th
Cir. 1994). The Court notes that “[a] plaintiff need not know the full extent of his injuries before
the statute of limitations begins to run,” Industrial Constructors Corp. v. U.S. Bureau of
Reclamation, 15 F.3d 963, 969 (10th Cir. 1994); see also Romero v. Lander, 461 F. App’x 661,
669 (2012) (1983 case), and “it is not necessary that a claimant know all of the evidence
ultimately relied on for the cause of action to accrue.” Baker v. Bd. of Regents of State of Kan.,
991 F.2d 628, 632 (10th Cir. 1993) (emphasis in original).
This action was filed on September 17, 2015; thus, any claims accruing before September
11, 2011 could be barred by the statute of limitations.

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The Court also carefully reviewed all documents attached to Plaintiff's original complaint. (ECF No. 5.) Those
documents were mostly irrelevant grievance forms and were inapplicable date-wise. (Id.) Other relevant documents
were almost entirely repetitive of evidence found in Defendants' Martinez report. (Id.; ECF No. 49-50.)

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The Court may raise the statute of limitations affirmative defense sua sponte when it is
“clear from the face of the complaint [and is] rooted in adequately developed facts.” Fratus, 49
F.3d at 674-75. This is true as to the following claims:
(1) Defendant Kennon Tubbs: Allegation that, on October 4, 2005, Tubbs consulted Plaintiff
regarding neuropathy and pressure sores, then told Plaintiff that he would have to buy shoes at
the commissary instead of providing special shoes.
(2) Defendant Logan Clark: Allegation that, before October 28, 2010, Clark refused to provide
medical sports shoe to Plaintiff. (Inmate Grievance Form, Am. Compl., ECF No. 13, at 58.)
(3) Defendant Terry Jeffries: Allegation that, on October 28, 2010, Jeffries refused to provide
authorization for well-fitted shoes. (Id.)
(4) Defendant Sam Stone: Allegation that, on May 5, 2010, Stone delivered ill-fitting slippers
instead of well-fitted shoes. Indeed, “Officer Stone refused to supply well-fitted shoes, claiming
inmates were selling them for commissary.” (Am. Compl, ECF No. 13, at 14.)
“When a district court believes it is likely that a pro se prisoner’s § 1983 complaint is
dismissible on the basis of the state’s statute of limitations, the court may issue a show cause
order giving the plaintiff an opportunity to explain why the statute of limitations should not be
tolled.” Arroyo v. Starks, 589 F.3d 1091, 1097 (10th Cir. 2009).
The Court did so here, requiring Plaintiff to show cause why the statute of limitations
should be tolled as to only the four claims and defendants listed (1) through (4) in this section.
(ECF No. 45, at 2-3.)
Plaintiff responded with the sole argument that the continuing-violation doctrine brings
the four claims and defendants within the statute of limitations: "This delay of treatment was
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continued and perpetuated for 8 1/2 years by all of the defendants in this case. It was one
continuous affront to plaintiff' physical safety by the defendants in the course of 8 plus years."
(ECF No. 46, at 2.)
The Tenth Circuit has not yet decided whether the continuing-violation doctrine applies
to § 1983 claims. See Vasquez v. Davis, 882 F.3d 1270, 1277 (10th Cir. 2018); Colby v. Herrick,
849 F.3d 1273, 1280 (10th Cir. 2017) (assuming "[f]or the sake of argument" that continuing
violation doctrine applies to § 1983 claims, but concluding doctrine would not save time-barred
claim in that case). The question need not be decided here either, because--even if the doctrine
were applied--it would not save the four claims. That is because the continuing-violation
doctrine, as defined by the Tenth Circuit, would apply only when a particular defendant allegedly
committed wrongful acts within, as well as outside, the limitations period. Vasquez, 882 F.3d at
1277; see also Shomo v. City of New York, 579 F.3d 176, 183-84 (2d Cir. 2009). Here, none of
these Defendants--Tubbs, Clark, and Stone--had any alleged interactions with Plaintiff within the
four-year period preceding his filing of this action. And Defendant Jeffries did not have further
alleged interactions about shoes regarding the assertion that, on October 28, 2010, Defendant
Jeffries refused to provide authorization for well-fitted shoes. Even if the continuing-violation
doctrine were to be applied here, then, it would not save Plaintiff's claims against the Defendants
Tubbs, Clark, and Stone, and Defendant Jeffries as to the October 28, 2010 allegation.
Defendants Tubbs, Clark and Stone are therefore dismissed from this case. And the
October 28, 2010 claim against Defendant Jeffries is also dismissed from this case.

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II. QUALIFIED IMMUNITY
A. REMAINING DEFENDANTS AND CLAIMS
The only remaining defendants and claims are allegations that: (a) on February 19, 2013,
Plaintiff consulted Defendant Roberts "about the loss of his medications and all of his
clearances being revoked," but "Roberts refused to renew plaintiff's medication or reinstate his
medical clearances," (Am. Compl., ECF No. 13, at 17); (b) around February 25, 2013,
Defendant Jeffries withheld vital medications from Plaintiff, (Inmate Grievance Form, Am.
Compl., ECF No. 13, at 65); (c) in Spring of 2013, Defendant Coombs cut open a pressure sore,
causing infection; and, (d) on July 22, 2013, Defendant Merrill examined "serious pressure
ulcer caused by ill-fitting prison issued 'wide shoes' . . . and denied the use of shower shoe for
ulcerated foot," (id. at 20).
B. QUALIFIED-IMMUNITY STANDARD
When determining whether to grant summary judgment, this Court must examine the
evidence filed by the parties to determine whether any genuine issues of material fact exist and,
if not, correctly apply relevant substantive law to the undisputed facts. Grissom v. Roberts, 902
F.3d 1162, 1167 (10th Cir. 2018).
Individual defendants sued for damages under § 1983 may
raise a defense of qualified immunity. “Qualified
immunity attaches when an official's conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Kisela v. Hughes, 138 S.
Ct. 1148, 1152 (2018) (internal quotation marks omitted). This
standard arises from balancing two important but contrary
interests. On the one hand, “an action for damages may offer the
only realistic avenue for vindication of constitutional guarantees.”
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). On the other
hand, exposing public officials to liability for damages presents its
own “social costs[,] includ[ing] the expenses of litigation, the
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diversion of official energy from pressing public issues, and the
deterrence of able citizens from acceptance of public office.” Id.
And, perhaps most significantly, “there is the danger that fear of
being sued will dampen the ardor of all but the most resolute, or
the most irresponsible public officials, in the unflinching discharge
of their duties.” Id. (brackets and internal quotation marks
omitted).
“Because the focus is on whether the officer had fair notice
that her conduct was unlawful, reasonableness is judged against the
backdrop of the law at the time of the conduct.” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (internal quotation marks omitted).
Thus, when a defendant has raised qualified immunity as a
defense, the plaintiff must establish (1) that the defendant's action
violated a federal constitutional or statutory right; and (2) that the
right violated was clearly established at the time of the defendant's
actions. See Thomson v. Salt Lake City, 584 F.3d 1304, 1312 (10th
Cir. 2009). Under this test, “immunity protects all but the plainly
incompetent or those who knowingly violate the law.” Kisela, 138
S. Ct. at 1152 (internal quotation marks omitted).
The test imposes a “heavy two-part burden.” Casey v. W.
Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.
2007) (internal quotation marks omitted). If the plaintiff fails to
satisfy either part of the two-part inquiry, a court must grant the
defendant qualified immunity. See Medina v. Cram, 252 F.3d
1124, 1128 (10th Cir. 2001). The court has discretion to decide
which of the two prongs of the qualified-immunity analysis to
address first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“If, and only if, the plaintiff meets this two-part test does a
defendant then bear the traditional burden of the movant
for summary judgment....” Clark v. Edmunds, 513 F.3d 1219, 1222
(10th Cir. 2008) (internal quotation marks omitted).
Id. at 1167-68.
To educate Plaintiff about his duty in responding to a summary-judgment motion, the
Court stated in an order,
Plaintiff is notified that if Defendant moves for summary judgment
Plaintiff may not rest upon the mere allegations in the complaint.
Instead, as required by Federal Rule of Civil Procedure 56(e), to
survive a motion for summary judgment Plaintiff must allege
specific facts, admissible in evidence, showing that there is a
genuine issue remaining for trial.
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(Doc. No. 45, at 14.) The Court also provided Plaintiff with the full texts of Federal Rule of Civil
Procedure 56 and District of Utah Local Civil Rule 56-1. (See id. at 16-19.)
Based on the undisputed material facts below, the Court concludes that, under the
qualified-immunity defense, Plaintiff has not established the first necessary prong of his burden:
that Defendant’s actions violated a federal constitutional right.
C. UNDISPUTED MATERIAL FACTS
• At relevant time, Plaintiff was Utah Department of Corrections (UDOC) inmate. (ECF No. 13.)
• At relevant time, Defendant Jeffries was UDOC physician assistant (PA). (ECF No. 49-12, at
2.)
• At relevant time, Defendant Roberts was UDOC physician. (ECF No. 49-14, at 2.)
• At relevant time, Defendant Coombs was UDOC PA. (ECF No. 49-15, at 2.)
• At relevant time, Defendant Merrill was UDOC PA. (ECF No. 49-16, at 2.)
• 1/18/13 - Defendant Jeffries examined Plaintiff for "refill of Sudafed and also ibuprofen . .
renewal for clearances for lower bunk, lower tier, extra pillow, and shower chair." (ECF Nos. 4912, at 5; 50-2, at 834, 841.) Jeffries refilled Plaintiff's Motrin prescription, noted too early to
refill Sudafed, and re-requested clearances. (ECF Nos. 49-12, at 6; 50-2, at 841.)
• 2/19/13 - Defendant Roberts did not reorder Sudafed for Plaintiff or notice any foot sores. (ECF
No. 49-14, at 4-5.) As to Sudafed, Defendant Roberts told Plaintiff "Sudafed plays no role in the
treatment of asthma [and i]f he has trouble with asthma [Plaintiff] should come to the infirmary
immediately." (ECF Nos. 49-14, at 5; 50-2, at 835.) Defendant Roberts noted "clearance requests
for size 13 medical shoes, a bottom bunk clearance, a bottom tier, and a shower chair had been
submitted . . . to the clearance review committee." (Id. at 5-6.)
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• 2/20/13 - Defendant Roberts noted in Plaintiff's "medical charts . . . that certain clearances
should be revisited pending confirmation of [multiple sclerosis (MS)] diagnosis." (Id. at 6.)
• 2/25/13 - No medical records around this date show meeting with Defendant Jeffries. (ECF No.
50-2, at 829-31.)
• 3/5/13 - Defendant Roberts prescribed Plaintiff pseudoephedrine for "allergic rhinitis." (ECF
No. 50-2, at 827-28.)
• 3/18/13 - Defendant Roberts prescribed Plaintiff diphenhydramine for "insomnia with sleep
apnea." (ECF No. 50-2, at 824-26.)
• 3/25/13 - Defendant Roberts MRI "to look for lesions associated with MS." (ECF Nos. 49-14,
at 5; 50-1, at 67.)
• 3/25-29/13 - Defendant Roberts resubmitted Plaintiff's "clearances for a bottom bunk, a shower
chair, and size 13 orthopedic shoes," which were "all denied by the Clearance Committee." (ECF
Nos. 49-14, at 7; 50-2, at 817-825.) Defendant Roberts had "no authority to approve or deny the
medical clearances that the committee reviews." (ECF No. 49-14, at 7.)
• Spring 2013 - Defendant Coombs did not have medical visit with Plaintiff in which he "cut
open a pressure sore." (ECF No. 49-15, at 2.)
• 4/17/13 - While showing "no lesions consistent with MS," MRI done at University of Utah was
stopped early because Plaintiff "claimed claustrophobia." (ECF Nos. 49-14, at 6; 50-1, at 67-70
50-2, at 811.)
• 6/29/13 - Second MRI done at University "also confirmed no lesions or scarring consistent"
with MS. (ECF Nos. 49-14, at 6; 50-2, at 792.)

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• 7/22/13 - Defendant Merrill examined Plaintiff's foot wound. (ECF Nos. 49-16, at 2; 50-2, at
787.) During visit, Plaintiff refused dressing changes for foot blister. (ECF Nos. 49-16, at 2; 502, at 786-87.) Merrill saw "no drainage erythema, odor, or other symptoms of infection" and
advised Plaintiff "to keep the blister clean." (ECF Nos. 49-16, at 3; 50-2, at 787.) Plaintiff was
"given band aids but told to let [blister] air out part of the day." (ECF Nos. 49-16, 3; 50-2, at
787.) Plaintiff also given "Bacitracin to apply." (ECF No. 50-2, at 787.) Merrill "submitted a
clearance request [to the medical clearance committee] for [Plaintiff] for crutches and a pair of
shower shoes." (ECF Nos. 49-16, at 3; 50-2, at 787.) Merrill advised Plaintiff to follow up "if not
improving." (ECF No. 50-2, at 787.) "[T]he clearance committee denied the request for shower
shoes." (ECF No. 49-16, at 3.) Merrill had "no say in whether a clearance request that [he]
submit[ted] is approved by the clearance committee." (Id.)
• 9/28/16 - Plaintiff signed Amended Complaint. (ECF No. 13, at 30.)
D. ANALYSIS
To succeed under the Eighth Amendment, Plaintiff must demonstrate acts or omissions
harmful enough to show deliberate indifference that offends “’evolving standards of decency.’”
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted). That amendment proscribes only
deliberate indifference constituting the “’unnecessary and wanton infliction of pain.’” Id. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion)). Moreover, Plaintiff must
“allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id. at 104 (emphasis added). Plaintiff needs to show that Defendants' actions
were more than negligent. After all, negligent failure to give sufficient medical care, even
touching medical malpractice, does not equal a constitutional violation. Id. at 106.
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Estelle’s deliberate-indifference standard has an objective component asking whether
the alleged deprivation is “sufficiently serious,” and a subjective component asking whether the
defendant official “knows of and disregards an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). The subjective component
questions whether prison officials acted with a “sufficiently culpable state of mind.” Clemmons
v. Bohannon, 956 F.2d 1523, 1525-26 (10th Cir. 1992). “[E]ven if a prison official has
knowledge of a substantial risk of serious harm to inmates, he is not deliberately indifferent to
that risk unless he is aware of and fails to take reasonable steps to alleviate the risk.” Tafoya v.
Salazar, 516 F.3d 912, 916 (10th Cir. 2008). Thus, Plaintiff must show he suffered from a
serious condition that Defendants knew about and ignored, and that by ignoring Plaintiff’s
condition, or failing to take reasonable steps to alleviate the risk, Defendants caused Plaintiff
serious physical harm or the unnecessary, wanton infliction of pain.
Here, Plaintiff’s claims fail because Defendants did not disregard substantial risk of
serious harm to Plaintiff’s health. Rather, based on uncontroverted evidence, Defendants
answered each of Plaintiff’s numerous medical requests and referred him out for testing and
treatment as deemed necessary.
When the only dispute about a prisoner’s medical treatment regards adequacy, “’courts
are generally reluctant to second guess [professional] medical judgments.’” Maez v. Merrill,
No. 2:07-CV-986 TC, 2008 U.S. Dist. LEXIS 72842, at *6-7 (D. Utah September 23, 2008)
(unpublished) (quoting Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)); see Fitzke v.
Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972). Mere disagreement between a prisoner and
prison medical staff as to diagnosis or treatment does not support a deliberate-indifference
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claim. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); LeDoux v. Davies, 961 F.2d 1536,
1536 (10th Cir. 1992). Eighth Amendment violations occur only when medical treatment is so
grossly incompetent, inadequate, or excessive as to “’shock the conscience or be intolerable to
fundamental fairness.’” Whitehead v. Burnside, 403 F. App’x 401, 403 (11th Cir. 2010)
(citation omitted). An inmate’s belief that he should have been treated differently does not
show “deliberate indifference.” Scott v. Gibson, 37 F. App’x 422, 423 (10th Cir. 2002)
(unpublished) (citation omitted).
Here, Plaintiff’s claims are, at best, a “difference of opinion” as to treatment during a
relatively short time span (February to July 2013). See Olson 9 F.3d at 1477. At worst,
Plaintiff's claims are specious. From the moment Defendants first saw Plaintiff, they jumped to
action, examining Plaintiff, prescribing medication and medical equipment, consulting with
outside specialists, and tailoring a special treatment plan to Plaintiff’s specific needs. The
extensive medical records (1,500-plus pages) before the Court reveal that on a regular basis and
whenever Plaintiff reported symptoms, his treatment was reviewed, exams done, observations
made, testing arranged, prescriptions offered, and medical equipment and wound-care
conscientiously requested or provided.
More specifically, first, regarding Defendant Roberts' treatment of Plaintiff on February
19, 2013, contemporaneous medical records before the Court indicate that Roberts did not--as
Plaintiff alleges--"refuse to renew plaintiff's medication or reinstate his medical clearances."
(Am. Compl., ECF No. 13, at 17.) Instead, Roberts told Plaintiff "that Sudafed plays no role in
the treatment of asthma [and i]f he has trouble with asthma [Plaintiff] should come to the
infirmary immediately." (ECF Nos. 49-14, at 5; 50-2, at 835.) Roberts noted that Plaintiff's
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"clearance requests for size 13 medical shoes, a bottom bunk clearance, a bottom tier, and a
shower chair had been submitted . . . to the clearance review committee." (Id. at 5.) The next day,
Roberts noted in Plaintiff's "medical charts . . . that certain clearances should be revisited
pending confirmation of [multiple sclerosis (MS)] diagnosis." (Id. at 6.) Thirteen days later, on
March 5, 2013, Roberts prescribed Plaintiff pseudoephedrine for "allergic rhinitis." (ECF No. 502, at 827-28.) Also in March 2013, Roberts prescribed Plaintiff diphenhydramine for "insomnia
with sleep apnea," (ECF No. 50-2, at 824-26); "ordered an MRI exam . . . to look for lesions
associated with MS," (ECF Nos. 49-14, at 5; 50-1, at 67); and resubmitted Plaintiff's "clearances
for a bottom bunk, a shower chair, and size 13 orthopedic shoes," which were "all denied by the
Clearance Committee," (ECF Nos. 49-14, at 7; 50-2, at 817-825). It is undisputed that Roberts
had "no authority to approve or deny the medical clearances that the committee reviews." (ECF
No. 49-14, at 7.) These undisputed facts show that Roberts indeed prescribed medication and
requested clearances, which is the exact opposite of Plaintiff's failed allegations against Roberts.
Second, more specifically regarding Defendant Jeffries' treatment of Plaintiff on
February 25, 2013, contemporaneous medical records indicate that Jeffries did not withhold vital
medications from Plaintiff. (See Inmate Grievance Form, Am. Compl., Doc. No. 13, at 65.)
Indeed, no medical records around this date show Plaintiff meeting with Jeffries. (ECF No. 50-2,
at 829-31.) The closest medical visit that Plaintiff had with Jeffries came on January 18, 2013,
when Jeffries examined Plaintiff regarding "refill of Sudafed and also ibuprofen . . . renewal for
clearances for lower bunk, lower tier, extra pillow, and shower chair." (ECF Nos. 49-12, at 5; 502, at 834, 841.) Jeffries refilled Plaintiff's Motrin prescription, noted it was too early to refill

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Sudafed, and re-requested his clearances. (ECF Nos. 49-12, at 6; 50-2, at 841.) This undisputed
evidence also directly contravenes Plaintiff's allegation about Jeffries, which is unfounded.
Third, more specifically regarding Defendant Coombs's treatment of Plaintiff in Spring
2013, undisputed evidence indicates that Coombs did not cut open Plaintiff's pressure sore,
causing an infection. (ECF No. 49-15, at 2.) This directly contradicts Plaintiff's allegation about
Coombs, which is unfounded.
Finally, more specifically regarding Defendant Merrill's treatment of Plaintiff on July
22, 2013, undisputed evidence indicates that Merrill did not deny "use of shower shoe for
ulcerated foot." (ECF No. 13, at 20.) Instead, Merrill "submitted a clearance request [to the
medical clearance committee] for [Plaintiff] for crutches and a pair of shower shoes." (ECF Nos.
49-16, at 3; 50-2, at 787.) Merrill advised Plaintiff to follow up "if not improving." (ECF No. 502, at 787.) "[T]he clearance committee denied the request for shower shoes." (ECF No. 49-16, at
3.) Merrill had "no say in whether a clearance request that [he] submit[ted] is approved by the
clearance committee." (Id.) And, thus, Plaintiff's allegation against Merrill is also baseless.
Plaintiff’s allegations--against these defendants regarding these specific times--that he
did not receive adequate and necessary medical care boil down to nothing more than Plaintiff’s
inaccurate factual assertions and differing opinion as to the judgments made by medical
professionals who continually evaluated Plaintiff’s conditions during the time in question.
Plaintiff’s medical records clearly show his concerns and requests were consistently addressed.
As a matter of law, treatment based on a professional’s medical judgment, even if it is
not what an inmate wants, does not rise to the level of deliberate indifference. Self v. Crum, 439
F.3d 1227, 1232-33 (10th Cir. 2006) (“[T]he subjective component is not satisfied, absent an
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extraordinary degree of neglect, where a doctor merely exercises his considered medical
judgment. Matters that traditionally fall within the scope of medical judgment are such
decisions as whether to consult a specialist . . . . [W]here a doctor orders treatment consistent
with the symptoms presented and then continues to monitor the patient’s condition, an
inference of deliberate indifference is unwarranted under our case law.”). Also, when records
show an inmate has been monitored, attended to, and treated often, the inmate cannot show
deliberate indifference. Wingfield v. Robinson, No. 10-CV-01375, 2011 U.S. Dist. LEXIS
125825, at *32 (D. Colo. August 10) (missing subjective intent for deliberate indifference when
defendants responded to grievances, examined plaintiff, and prescribed treatment more than
fifteen times). Here, Plaintiff was consistently evaluated by Defendants and others. And,
Plaintiff’s medical records show that Plaintiff received ongoing medical help from Defendants
and others for each medical issue raised.
As noted, Plaintiff sues Defendants because he misremembers the facts and disagrees
with medication dosages and decisions during snapshots in time over the course of more than a
decade of treatment. But, “informed judgment” as to appropriate treatment does not amount to
deliberate indifference. Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986). Here, even if
Plaintiff could prove that alternative treatment was medically appropriate, Plaintiff still cannot
meet his burden of showing Defendants were unreasonable in relying on their own judgment and
evaluations and administering treatment accordingly.
The undisputed material facts show Defendants were not deliberately indifferent to
Plaintiff’s medical treatment. Thus, Defendants' actions did not violate a federal constitutional
right and they are due qualified immunity.
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III. CONCLUSION
IT IS ORDERED that Defendants' Motion for Summary Judgment is GRANTED, (ECF
No. 54). The inadequate-medical-care claims are DISMISSED WITH PREJUDICE. All other
Defendants and claims having been dismissed in past orders, this action is CLOSED.
Dated this 5th day of March, 2020.
BY THE COURT:

________________________________
JUDGE CLARK WADDOUPS
United States District Court

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