Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-00093-ZLW-BNB

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Filed 09/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 04-cv-00093-ZLW-BNB JOSE D. RAMIREZ, Plaintiff, v. SERGEANT NEVINE, Defendant. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter is before me on Defendant Nevins'Motion for Summary Judgment (the " Motion" filed July 22, 2005. The plaintiff did not respond to the Motion.1 For the following ), reasons, I respectfully RECOMMEND that the Motion be GRANTED. I. STANDARD OF REVIEW As a preliminary matter, I must liberally construe the pleadings of a pro se plaintiff. Haines v. Kerner, 104 U.S. 519, 520-21 (1972). Nevertheless, I cannot act as advocate for a pro

se litigant, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). Rule 56(c), Fed. R. Civ. P., provides that summary judgment may be rendered

The plaintiff was ordered to respond to the Motion on or before August 22, 2005. The plaintiff did not file a response, nor did he seek leave of Court for an extension of time.

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if the " pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of material fact exists " the if evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 447 U.S. 317, 323 (1986). The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Id. at 324. Failure to file a response within the time specified results in a waiver of the right to respond or to controvert the facts asserted in the summary judgment motion. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Under these circumstances, the court accepts as true " all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment." Id. II. UNDISPUTED MATERIAL FACTS The plaintiff currently is incarcerated by the Colorado Department of Corrections (" DOC" at the Limon Correctional Facility. He filed an Amended Prisoner Complaint (the ) " Complaint" on January 12, 2005. The Complaint brings one claim against defendant Sgt. ) Nevins.2 He alleges that Nevins was deliberately indifferent to his medical needs in violation of

The plaintiff names the defendant as " Sgt. Nevine"in the Complaint. However, the defendant' affidavit reflects that his name is " s Nevins." Motion, Exhibit A. Therefore, I refer to the defendant as Nevins instead of Nevine.

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the Eighth Amendment by refusing to assign him to the bottom bunk in his cell. Amended Complaint, p. 4. Nevins is a Sergeant employed by the DOC at the Sterling Correctional Facility. Motion, Exhibit A, ¶ 2. On January 28, 2002, the plaintiff and approximately eight other inmates were transferred from Sterling' Living Unit 1 to Living Unit 3. Id. at ¶¶ 4-5. Nevins was in charge of s assigning cells and bunks to the inmates. Id. at ¶ 5. All inmates were asked by either Nevins or Officer Iris Christans whether they had any medical restrictions or special medical needs. Id. at ¶ 6. All inmates, including the plaintiff, replied that they did not. Id. It was the Unit procedure to ask all incoming inmates these questions, and it was the inmates'responsibility to produce any medial restrictions upon demand. Id. Later that day, the plaintiff advised Nevins that he had a bottom bunk restriction. Id. at ¶ 7. However, the plaintiff was unable to produce a copy of the medical restriction. Id. Nevins instructed the plaintiff to request a new copy of his restriction from the medical department. Id. Nevins also told the plaintiff that he would call the medical department to verify the restriction. Id. Nevins contacted the medical staff on January 28 and 29, 2002, and was unable to obtain verification of the plaintiff' medical restriction. s Id. at ¶ 10.

III. ANALYSIS This action is brought under 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983.

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A prison official' deliberate indifference to an inmate' serious medical needs violates the s s inmate' Eighth Amendment right to be free from cruel and unusual punishment. See Estelle v. s Gamble, 429 U.S. 97, 104 (1976). " This is true whether the indifference is manifested by prison doctors in their response to the prisoner' needs or by prison guards in intentionally denying or s delaying access to medical care." Id. at 104-05. To establish a claim for deliberate indifference, a plaintiff must prove both an objective component and a subjective component. The objective component is met if the inmate' medical need is sufficiently serious. s Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is sufficiently serious " it is one if that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). The subjective component to a deliberate indifference claim is met if a prison official " knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. " [T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. The evidence in this case establishes that the plaintiff requested a bottom bunk, stating that he had a medical restriction; inmates are responsible for providing evidence of their medical restrictions; the plaintiff was told to produce evidence of his medical restriction; he did not produce evidence of his medical restriction; and Nevins was unable to verify with the medical department that the plaintiff had a medical restriction. The plaintiff has produced no evidence to create a material fact dispute that he had a serious medical condition. Moreover, he has not produced any evidence to create a material fact dispute that Nevins knew of and disregarded an excessive risk to his safety. Consequently, the plaintiff has failed to create a factual issue for trial

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on the issue of whether Nevins was deliberately indifferent to the plaintiff' serious medical needs s in violation of the Eighth Amendment. I respectfully RECOMMEND that the Motion be GRANTED.3 IV. CONCLUSION For all of these reasons, I respectfully RECOMMEND that the Motion be GRANTED and that summary judgment enter in favor of the defendant and against the plaintiff on the plaintiff' s claim against him. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party' failure to serve and file specific, written objections waives de novo s review of the recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474

U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party' objections s to this recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Dated September 26, 2005. BY THE COURT: /s/ Boyd N. Boland United States Magistrate Judge

Because I find that the Motion should be granted based on the plaintiff' failure to create a s factual issue for trial, I do not reach the defendant' remaining arguments. s

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