Free Motion to Dismiss - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-174-WDM-MJW OLOYEA D. WALLIN, Plaintiff, v. OFFICER MR. F. DYCUS, OFFICER MR. GILBERT, OFFICER MR. DOMENICO, NURSE MS. TRAUB, K.C.C.C. MS. BAIR, K.C.C.C. MS. J. FUCHS, K.C.C.C. MS. WEDERSKI, K.C.C.C. WARDEN MR. H. BRILL, C.D.O.C. LIASON MR. BOUJOURNAL, C.D.O.C. MR. E. GILLESPIE, CORRECTIONAL CORPORATIONS OF AMERICA (CCA), Mr. John Doe, and COLORADO DEPARTMENT OF CORRECTIONS (CDOC), Mr. Joe Ortiz, Defendants. ______________________________________________________________________________ DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Dycus, Gilbert, Domenico, and Traub, by and through their attorneys, Hall & Evans, L.L.C., hereby file their Motion to Dismiss or Alternatively for Summary Judgment. As grounds therefore, Defendants state as follows: INTRODUCTION Plaintiff filed his Prisoner Complaint on or about January 29, 2003. In his Complaint, Plaintiff brought claims against individual defendants Domenico, Dycus, Gilbert, Traub, Bair, Bongirno, Brill, Fuchs, Gillespie, Ortiz and Wederski, as well as institutional defendants the Colorado Department of Corrections and Corrections Corporation of America. Plaintiff alleged that Dycus, a prison guard, used excessive force when placing restraints around his wrists.

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Plaintiff further alleged that he suffered injury to his wrists and requested to have medical staff examine his injuries. Despite his requests to various prison personnel, Plaintiff alleges no medical staff came to his assistance. Plaintiff also contends that prison guards Dycus and Gilbert denied Plaintiff his medication and that Nurse Traub shared his confidential medical information with Dycus. Defendants Bair, Fuchs, and Brill were alleged by Plaintiff to have been notified of Dycus' acts through Plaintiff's use of the inmate grievance process yet they failed to act. Based on these allegations Plaintiff claimed various violations of the Eighth Amendment and Colorado tort law. The CCA Defendants (all defendants except the Colorado Department of Corrections and Defendants Ortiz and Bongirno) moved to dismiss Plaintiff's Complaint under Fed. R. Civ. P. 12(b)(6). Magistrate Judge Watanabe recommended granting the motion filed by the CCA Defendants and denying Plaintiff's motion to amend his complaint. After consideration of an objection filed by Plaintiff, the District Court adopted the Recommendation in part, and reversed in part. The District Court found that Plaintiff had exhausted his administrative remedies only with respect to his first and sixth causes of action, and only against Defendant Dycus. Plaintiff's first cause of action alleged excessive force against Defendant Dycus in the application of wrist restraints, while Plaintiff's sixth cause of action alleged Defendants Dycus, Gilbert and Domenico were deliberately indifferent to Plaintiff when they refused to provide him his prescribed medication. Accordingly, the District Court dismissed all of Plaintiff's federal claims against Defendants Gilbert, Domenico, Traub for failure to exhaust administrative remedies except, as noted above, Plaintiff's first and sixth causes of action, against Defendant Dycus. Following entry of its order on Defendants' motion to dismiss, the District Court ordered

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Plaintiff to file an amended complaint consistent with the Court's order. The District Court dismissed Plaintiff's Complaint in its entirety when Plaintiff failed to file an amended complaint. Plaintiff appealed the dismissal of his case and the District Court's order on Defendants' motion to dismiss. The Tenth Circuit vacated that portion of the District Court's opinion dismissing Plaintiff's federal claims against Defendants Gilbert, Domenico, Traub, and Dycus due to Plaintiff's failure to plead exhaustion and remanded the case for further proceedings consistent with the Supreme Court's opinion in Jones v. Bock, 127 S. Ct. 910, 921 (2007), which was decided subsequent to the District Court's order on Defendants' motion to dismiss. As directed by the District Court, Plaintiff filed his Amended Prisoner Complaint on July 21, 2008. [Doc. #279]. Plaintiff's Amended Prisoner Complaint includes four causes of action all attempting claims under the Eighth Amendment. Plaintiff's Claim Two asserts an Eighth Amendment violation against Defendant Dycus for his intentional and deliberate failure to allow Plaintiff to seek medical attention for his injured wrists. Plaintiff's Claim Three attempts an Eighth Amendment claim against Defendant Gilbert for his failure to intervene while Defendant Dycus used excessive force in the application of wrist restraints. Plaintiff's Claim Six alleges that Defendants Gilbert and Domenico showed deliberate indifference in violation of the Eighth Amendment when they failed to give Plaintiff his prescribed medication. Finally, Plaintiff's Claim Seven asserts Defendant Traub violated the Eighth Amendment when she intentionally disclosed Plaintiff's confidential medical information to non-medical staff.

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SUMMARY OF ARGUMENT Defendants now move to dismiss, or in the alternative, for summary judgment on Plaintiff's claims against them 1 . Plaintiff's claim of deliberate indifference against Defendant Gilbert fails for lack of personal participation by Defendant Gilbert in any alleged unconstitutional conduct and his inability to intervene to prevent any unconstitutional conduct. Plaintiff's Eighth Amendment claim against Defendant Dycus for refusing to allow him medical attention for his injured wrists and his claim against Defendants Gilbert and Domenico alleging their failure to provide Plaintiff with his prescribed medication fail because Plaintiff suffered no injury from the several hour delay in receiving medical attention and medication. In addition, Plaintiff's claim against Defendant Dycus must be dismissed as Plaintiff has failed to exhaust his administrative remedies. Finally, Plaintiff's claim against Defendant Traub for disclosing his confidential medical records fails because Plaintiff has not established he suffered a physical injury as a result of the disclosure of his medical records, and he has failed to exhaust his administrative remedies. STANDARD OF REVIEW A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) may be granted if it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). On a Rule 12(b)(6) motion, the court accepts the

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Plaintiff's original complaint was not dismissed until the conclusion of discovery and after the remaining CCA Defendants had filed a motion for summary judgment. Defendants herein rely on discovery undertaken during the original case in support of their motion herein.

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well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). Construing the allegations in the light most favorable to the plaintiff, the court determines whether the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). If, on a motion asserting the defense of failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by Fed. R. Civ. P. 56. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this summary judgment standard, this Court must view the record and all reasonable inferences which may be drawn therefrom in the light most favorable to the non-moving party. DP-Tek, Inc. v. AT & T Global Information Solutions, Co., 100 F.3d 828, 831 (10th Cir. 1996); Wilson v. Meeks, 98 F.3d 1247, 1253 (10th Cir. 1996). Not all disputed facts, however, qualify as "material" or "genuine." A "material" fact is one that might affect the outcome of the dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). A "genuine" fact does not exist simply by the non-moving party demonstrating some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-moving party must come forward with evidence significantly probative of her claims. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-49 (1986). Ultimately, "[w]here the record taken as a whole could not lead a

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rational trier of fact to find for the non-moving party, there is no "genuine issue for trial." Matsushita, 475 U.S. at 586. STATEMENT OF FACTS 1. Plaintiff was in the segregation unit on July 2, 2002, at the time the incidents that form

the basis of his complaint occurred. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 11, ll. 1-7]. 2. On July 2, 2002, Officer Gilbert attempted to place handcuffs on Plaintiff but they did not

fit. Officer Gilbert then contacted Officer Dycus to assist with the placement of the handcuffs. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 13, ll. 11-25]. 3. Officer Dycus first placed the handcuff on Plaintiff's left wrist. [See, Plaintiff's

Deposition, attached hereto as Exhibit A-1, p. 14, ll. 5-10]. 4. Plaintiff states that the placement of the handcuff on his left wrist was done with extreme

pressure causing him to jerk and pinching his wrist. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 14, ll. 5-11]. Plaintiff states that he complained to Officer Dycus that the handcuffs were hurting him. [Id.]. 5. Officer Dycus continued to place the handcuffs on Plaintiff by placing the handcuff onto

Plaintiff's right wrist. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 14, ll. 1114]. 6. Plaintiff states that the application of the handcuff to his right wrist was done with more

pressure than the application to the left wrist. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 14, ll. 11-14].

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7.

After Officer Dycus secured Plaintiff's right hand Plaintiff stood up, turned around and

complained to Officer Dycus that the handcuffs were too tight. Plaintiff further testifies that Officer Dycus yelled at him for moving and then ordered Plaintiff to turn around to remove the handcuffs. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.14, ll. 15-25]. 8. Plaintiff estimates that the handcuffs were on for a few minutes before Officer Dycus

removed them. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.15, ll. 4-14]. 9. Plaintiff testified that he named Officer Gilbert in his lawsuit because Officer Gilbert was

present when Officer Dycus placed the handcuffs on Plaintiff and Officer Gilbert did not intervene. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 15, ll. 15-23]. 10. Plaintiff testified that only Officer Gilbert was present when Officer Dycus was applying

the handcuffs. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 15, ll. 11-14]. 11. After the handcuffing incident, Plaintiff states that Officer Dycus came by to look at his

wrists. Plaintiff states that he asked Officer Dycus to call a doctor or nurse and Officer Dycus said he was not willing to call for medical help during his shift. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 21, ll. 11-19]. 12. Plaintiff does not know what time it was when he asked Officer Dycus for medical help.

[See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 21, ll. 22-25; p.22, ll. 10-23]. 13. Plaintiff states that he asked both Officers Gilbert and Domenico for medical attention

and they responded that they were under orders from Officer Dycus not to obtain medical attention for Plaintiff during their shift. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 22, ll. 10-23].

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14.

Plaintiff testified that he asked one of the correctional officers to get his prescription

medication and Officer Dycus responded that Plaintiff would not get anything on his shift. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 25, ll. 8-17]. 15. Plaintiff cannot remember which officer he asked for his prescription medication. [See,

Plaintiff's Deposition, attached hereto as Exhibit A-1, p.25, ll. 18-21]. 16. Plaintiff remembers that he had prescription medication for his skin problem but cannot

remember what other prescription medication he may have been taking on July 2, 2002. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.25 ll. 22-25; p.26, ll 1-10]. 17. Plaintiff cannot recall on what frequency he was to take prescription medication in July

2002. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.26, ll. 17-25; p.27, ll. 1-10]. 18. After being shown his Medication Administrative Record for July 2002, Plaintiff testified

that he believed he was prescribed Tolnaftate cream in July 2002 for his skin problem but cannot say for sure. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.27, ll. 1-10, 20-25; p.28, ll. 1-11; p.29, ll. 1-5; and Plaintiff's Medication Administrative Record attached hereto as Exhibit A-2]. 19. Plaintiff was again shown his Medication Administrative Record, Exhibit A-2, and asked

if he knew why he was taking naprosyn. Plaintiff testified that he did not know why he was taking naprosyn. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.29, ll. 6-9]. 20. When asked how he was injured as a result of being denied his medication, Plaintiff

testified that without his skin cream his skin would become irritated, itchy and scratchy. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.29, ll. 9-12].

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21.

Plaintiff testified that he could not say how he was injured as a result of being denied

naprosyn. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.30, ll. 6-9]. 22. Plaintiff admitted that his skin irritation is the only injury he sustained as a result of the

denial of his medication. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.30, ll. 10-20]. 23. Plaintiff testified that he was injured by Officer Dycus in the handcuffing incident

because the pressure of the application of the handcuffs caused creases in his wrists. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.30, ll. 24-45; p.31, ll. 1-8]. Plaintiff states that a doctor later determined that he had nerve damage in his wrists. [Id.]. 24. Plaintiff cannot recall the name of the medical doctor who told him he had nerve damage

in his wrists. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.31, ll. 15-18]. 25. Plaintiff cannot recall when he saw the doctor that told him he had nerve damage but

states it was quite some time after the incident. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.32, ll. 13-16]. 26. Since leaving the KCCC where the alleged incident occurred, Plaintiff has been in four

correctional facilities and has not sought medical treatment from any of those correctional facilities for his wrist injury. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.34, ll. 14-25; p.25, ll. 1-12]. 27. Plaintiff admits that no doctor has ever told him that his skin condition worsened due to

being denied skin cream during Officer Dycus' shift. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.40, ll. 12-16].

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28.

Plaintiff admits that he was examined by Nurse Traub on July 2, 2002, and that Nurse

Traub prepared an anatomical chart reflecting what injuries, if any, he sustained. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.41, ll. 21-24; and anatomical chart attached hereto as Exhibit A-3]. 29. Plaintiff was examined by Nurse Traub at approximately 1:35 on July 2, 2002. [See,

Plaintiff's Deposition, attached hereto as Exhibit A-1, p.42, ll. 7-10; Exhibit A-3]. Plaintiff's cuffing incident occurred at 8:44 a.m. on July 2, 2002. [Id.]. 30. Plaintiff cannot recall whether he asked Nurse Traub for his prescription medication.

[See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.46, ll. 13-15]. 31. Plaintiff recalls that Nurse Traub provided him with pain pills. [See, Plaintiff's

Deposition, attached hereto as Exhibit A-1, p.46, ll. 16-19]. 32. Plaintiff acknowledges that Nurse Traub conducted a second examination of Plaintiff

approximately fifty minutes after the first and that she completed a second anatomical form of Plaintiff during the second examination. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.47, ll. 21-25; p.48, ll. 1-17]. 33. Plaintiff's second anatomical form reflects that Plaintiff had a slight indentation on his

right wrist and no other observed marks or injuries. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.48, ll. 1-17; and Plaintiff's second anatomical form attached hereto as Exhibit A-4]. 34. Plaintiff testified that he instructed Nurse Traub not to discuss his confidential medical

information with the security officers. [See, Plaintiff's Deposition, attached hereto as Exhibit A1, p.49, ll. 18-25].

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35.

Plaintiff testified that he named Nurse Traub in this lawsuit because he believed she

discussed his confidential medical records with Officer Dycus. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.50, ll. 2-12]. 36. Plaintiff admits that he could not hear what Nurse Traub said to Officer Dycus but could

observe them. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.51, ll. 7-25; p.52, l 1]. 37. Plaintiff cannot recall anything that may have been said between Nurse Traub and Officer

Dycus but says he saw Nurse Traub pointing at Plaintiff's anatomical form. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.52, ll. 3-10]. 38. Plaintiff does not know whether Nurse Traub had his medical chart with her when she

came to examine him in the segregation unit. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p. 52, ll. 14-18]. 39. Plaintiff does not know whether Nurse Traub showed Officer Dycus any document other

than the anatomical form. [See, Plaintiff's Deposition, attached hereto as Exhibit A-1, p.52 ll. 19-23]. ARGUMENT I. DEFENDANT GILBERT IS ENTITLED TO JUDGMENT AS TO PLAINTIFF'S EXCESSIVE FORCE CLAIM AGAINST HIM

In his third claim for relief against Defendant Gilbert, Plaintiff asserts that Defendant Gilbert violated his Eighth Amendment rights by failing to intervene when Defendant Dycus handcuffed Plaintiff too tightly causing him pain. First, because any claim against Defendant Dycus for excessive force fails for lack of a constitutional violation, Plaintiff's claim against Defendant Gilbert for failure to intervene during

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the alleged unconstitutional act also fails. The Cruel and Unusual Punishment clause of the Eighth Amendment prohibits prison officials from using excessive force on inmates. Whitley v. Albers, 475 U.S. 312 (1986). Because applications of force are sometimes necessary to maintain order and control in the prison setting, "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Id. at 319. The key inquiry in whether force rises to the level of an Eighth Amendment violation is whether the force was applied "maliciously and sadistically for the very purpose of causing harm rather than in a good-faith effort to maintain or restore discipline." Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996); see also Hudson v. McMillian, 503 U.S. 1, 6 (1992). "Force is malicious and sadistic when no disciplinary rationale or penal purpose justifies it." Laury v. Greenfield, 87 F.Supp.2d 1210, 1215 (D. Kan. 2000). "De minimis applications of force are necessarily excluded from the cruel and unusual punishment inquiry." Northington, 973 F.2d at 1523-24. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973) (cited with approval in Northington, 973 F.2d at 1523). Indeed, finding every malevolent touch by a prison guard to be an Eighth Amendment violation would not only hinder guards' efforts to maintain order, but it would also put other inmates at risk. As the Tenth Circuit Court of Appeals explained: Hamstringing prison guards ... by forbidding their use of the force necessary to maintain control of the prison not only would endanger the guards but also could subject the prisoners themselves to greater violence at the hands of their fellow inmates. That is not constitutionally necessary. ... A court should also bear in mind that a prison guard, to maintain control of inmates, must often make

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instantaneous, on-the-spot decisions concerning the need to apply force without having to second-guess himself. Sampley v. Ruettgers, 704 F.2d 491, 495-496 (10th Cir. 1983). To determine whether an application of force violates the Eighth Amendment, courts weigh various factors. The need for the application of the force must be balanced with the amount of force used. Whitley, 475 U.S. at 321. The force must have been intended to harm the inmate and must "have been more than appeared reasonably necessary at the time of the use of force to maintain or restore discipline" in order to violate the Eighth Amendment. Sampley, 704 F.2d at 495. "But equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response." Whitley, 475 U.S. at 321 (emphasis added). In addition, although a significant injury is not required for an Eighth Amendment violation, "the extent of injury may be relevant in determining whether corrections officers unnecessarily and wantonly inflicted pain." Northington v. Jackson, 973 F.2d 1518, 1523-24 (10th Cir. 1992) (citing Hudson, 503 U.S. at 7-8). For this case to go to a jury, the facts must "show[ ] that there was no plausible basis for [a] belief that this degree of force was necessary." See Whitley, 475 U.S. at 323. Such a standard takes into account the deference that is provided to prison officials' decisions to carry out policies or practices that they believe necessary to preserve internal order, discipline and security. See id. at 322. Thus, "[u]nless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury." Id.

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Defendant Dycus' conduct, even as characterized by Plaintiff, cannot be described as undertaken with wantonness and an intention to inflict pain. First, handcuffing inmates is an integral part of prison life, particularly for inmates housed in the segregation unit of a prison. Second, even according to Plaintiff's own testimony, Officer Dycus removed the handcuffs almost immediately after Plaintiff complained that they were hurting him. After both handcuffs were placed on Plaintiff's wrists, Plaintiff states that he stood up, turned around and complained to Officer Dycus that the handcuffs were too tight. [Statement of Facts, ¶7]. Plaintiff admits that the handcuffs were only on for a few minutes before Officer Dycus removed them. [Statement of Facts, ¶ 8]. Although Plaintiff testified that he complained to Officer Dycus that the handcuffs were hurting him after he handcuffed the left wrist and before the right wrist was handcuffed, that alone is insufficient to establish that Officer Dycus was acting wantonly. Officer Dycus has testified that he placed the left handcuff on Plaintiff and checked the tightness after Plaintiff complained that it was hurting him. [See, Affidavit of Officer Dycus attached hereto as Exhibit A-5.] He further testifies that he did not initially remove the handcuff because there was a finger space in between the Plaintiff's wrist and handcuff which, according to policy, is how the handcuff is to be applied. [Id.] Officer Dycus testified that he nonetheless removed the

handcuffs after Plaintiff again complained that they were hurting him after application to the right wrist. [Id.] Finally, Officer Dycus testified that the handcuffs were on for no more than two minutes and that at no time were his actions taken to cause the Plaintiff pain. [Id.] Moreover, as stated above, although a significant injury is not required for an Eighth Amendment violation, "the extent of injury may be relevant in determining whether corrections officers unnecessarily and wantonly inflicted pain." Northington v. Jackson, 973 F.2d 1518,

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1523-24 (10th Cir. 1992) (citing Hudson, 503 U.S. at 7-8). In this case, other than Plaintiff's own self-diagnosis, Plaintiff has not established that he was injured as a result of Officer Dycus' placement of the handcuffs. Plaintiff admits that after the handcuffs were removed, a nurse examined him and noted that the Plaintiff had slight indentations and red marks around both wrists, yet maintained a full range of motion and saw no visible breaking of the skin, cuts or lacerations. [Statement of Facts, ¶¶ 28, 29.] This examination was conducted at 1:35. [Id.] A second examination was conducted by the Nurse approximately fifty minutes later. [Statement of Facts, ¶¶ 32.] During the second examination, the nurse noted that Plaintiff had a slight indentation on the right inner wrist though the other red marks and indentations noted in the first examination were gone. [Statement of Facts, ¶¶ 33.] Again the nurse did not observe any visible breaking of the skin, cuts or lacerations. Plaintiff asserts a doctor advised him that he suffered nerve damage as a result of the incident. Plaintiff is unable to identify the doctor, and has not produced any medical report supporting his statement. [Statement of Facts, ¶¶ 23, 24.] Plaintiff's hearsay statement is insufficient to create an issue of fact concerning his injury. Plaintiff also admits that after leaving KCCC, he has been incarcerated in four different correctional facilities and has not sought medical treatment from any of these facilities for his wrist injury. [Statement of Facts, ¶¶ 26.] Although Plaintiff contends that the application of the handcuffs resulted in pain and tingling in his left hand, absent specific "medical evidence" to support such a medical claim, the Plaintiff's "self-diagnosis alone cannot establish" the causal relationship between a prison condition and an alleged physical ailment. Kayser v. Caspari, Superintendent, Missouri Eastern Correctional Center, et. al., 16 F.3d 280, 281 (8th Cir. 1994).

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As Plaintiff's allegations fail to establish the existence of a constitutional violation against Defendant Dycus in applying the restraints, there can be no constitutional violation against Defendant Gilbert for failing to intervene during the alleged constitutional act. Defendant Gilbert is also entitled to summary judgment on Plaintiff's claim against him since an Eighth Amendment claim for failure to intervene requires an opportunity to intervene to prevent the alleged unconstitutional conduct. Here, the entire handcuffing incident lasted less than two minutes before Defendant Dycus removed the restraints. [Statement of Facts, ¶8]. Plaintiff testified that after the handcuffs were secured by Defendant Dycus, he stood up, turned around and complained that the handcuffs were too tight. [Statement of Facts, ¶ 7]. In response to Plaintiff's complaints that the handcuffs were too tight, Defendant Dycus instructed Plaintiff to turn around and removed the handcuffs. [Id.]. Since the handcuffs were removed almost immediately after Plaintiff complained they were too tight, there was no possibility for Defendant Gilbert to intervene. Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1994) (holding that officer who did not prevent fellow officer's use of allegedly excessive force against an arrestee may be liable under § 1983 if he had the opportunity to intervene but failed to do so). II. PLAINTIFF'S CLAIM AGAINST DYCUS FOR DELAYING HIS ACCESS TO MEDICAL ATTENTION AND HIS CLAIM AGAINST GILBERT AND DOMENICO FOR DELAYING HIS REQUEST FOR MEDICATION FAIL AS PLAINTIFF CAN POINT TO NO SERIOUS INJURY ARISING FROM THE DELAYS

Plaintiff alleges that Defendants Gilbert and Domenico showed deliberate indifference to his serious medical needs when they failed to give Plaintiff his prescribed medication during

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their shift, and that Defendant Dycus showed deliberate indifference to his serious needs when he failed to provide immediate medical attention for Plaintiff. Prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of prisoners in their custody. See Estelle v. Gamble, 429 U.S. 97, 104106 (1976); see also Wilson v. Seiter, 501 U.S. 294, 297 (1991). However, not every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. Whether looked at in terms of duty or deliberate indifference, however, prison officials who act reasonably cannot be found liable under the Eighth Amendment. Farmer, 511 U.S. at 845. Instead, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle, 429 U.S. at 106. A prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation. See id. at 107; Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 811 (10th Cir. 1999) (finding no constitutional violation when HIV positive inmate was not given a protease inhibitor to enhance effectiveness of drugs with which he was being treated because such amounted to difference of opinion in course of treatment); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993). Moreover, a delay in medical care, as is alleged by Plaintiff, only constitutes an Eighth Amendment violation if the deliberate indifference results in substantial harm. See, Olson v. Stotts, 9 F.3d 1475 (10th Cir. 1993). The plaintiff in Olson alleged that defendant prison officials were deliberately indifferent to his medical needs when they made him wait eleven days for heart surgery. In determining that the plaintiff had not met the standard of showing deliberate

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indifference, the court held that an eleven-day delay in obtaining surgery does not constitute deliberate indifference. "At most, plaintiff differs with the medical judgment of the prison doctor, believing that he should have received his elective surgery sooner than he did. Such a difference of opinion does not support a claim of cruel and unusual punishment." Id. at 1477. "[D]elay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference which results in substantial harm." Id., citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Similarly, in White v. State of Colorado, 82 F.3d 364 (10th Cir. 1996), the court held that a one or two year delay in providing surgery for the plaintiff's leg did not cause further damage to the plaintiff's leg and was not a violation of the Eighth Amendment. In White, the inmate suffered a leg injury in a car accident occurring prior to his incarceration. The Department of Corrections refused to provide the plaintiff with surgery, despite the fact that the surgery was recommended by several doctors, as the inmate was to be released from prison within a few years. In holding that the conduct of the prison officials did not violate the Eighth Amendment, the court stated, "[a]lthough the record contains the recommendation of several doctors that surgery might help alleviate problems with his left leg, the medical evidence is uncontroverted that a one- or two-year delay in having the surgery, until after plaintiff's release from prison, would not cause further damage to plaintiff's leg. . . . Further, plaintiff's allegations of the denial of, or delay in providing, diagnostic evaluation and other means of treatment for his leg injury implicate only defendants' negligence and do not establish the more culpable state of mind necessary to support claims of the denial of a constitutional right." Id. at 366, 377.

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In this case, Plaintiff contends that Defendants Gilbert and Domenico were deliberately indifferent to his serious medical needs by failing to provide him with his prescription medications during their shift on July 2, 2002. Plaintiff further contends Defendant Dycus was deliberately indifferent to his serious medical needs because he did not seek immediate medical attention for Plaintiff after he complained his wrists were injured. First, Plaintiff cannot specifically recall what prescription medications he was taking on July 2, 2002. [Statement of Facts, ¶ 16.] He believes he was taking Tolnaftate cream for his skin condition twice daily yet cannot be sure. [Statement of Facts, ¶¶ 18.] Plaintiff does not recall what other medication, if any, he was taking on July 2, 2002. [Id.] Plaintiff claims the denial of his skin cream for several hours caused his skin to become irritated, scratchy and itchy. [Statement of Facts, ¶¶ 20.] Plaintiff concedes, however, that no doctor has told him that his skin condition worsened as a result of the denial of his skin cream for several hours on July 2, 2002. [Statement of Facts, ¶¶ 27.] As Plaintiff can point to no other injury or worsening of a medical condition as a result of being denied his prescription medication on July 2, 2002, his Eighth Amendment claim for deliberate indifference to his serious medical needs must fail. [Statement of Facts, ¶¶ 21]. Second, the incident involving the application of the handcuffs occurred at 8:44 a.m. on July 2, 2002. [Statement of Facts, ¶ 29]. Plaintiff was examined by Nurse Traub at 1:35 p.m. on July 2, 2002, and again by Nurse Traub approximately 50 minutes later. [Statement of Facts, ¶¶ 29, 32]. As stated previously, during her examination Nurse Traub documented no injury to Plaintiff noting only red marks and a slight indentation on the wrists. Plaintiff concedes that Nurse Traub examined him on both occasions and that she provided him with pain pills.

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[Statement of Facts, ¶¶ 29-32]. Plaintiff does not recall whether he asked Nurse Traub to provide him with his prescribed medications. [Statement of Facts, ¶ 30]. Because Plaintiff cannot establish that a several hour delay in receiving his prescription medications and to be examined by a nurse resulted in substantial harm to Plaintiff, his Eighth Amendment claims against Defendants Gilbert, Domenico and Dycus must fail. III. PLAINTIFF'S CLAIM AGAINST DEFENDANT TRAUB FOR DISCLOSURE OF CONFIDENTIAL MEDICAL INFORMATION IS BARRED BY THE PHYSICAL INJURY REQUIREMENT OF THE PRISON LITIGATION REFORM ACT

The Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e ("PLRA") provides in relevant part that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Courts generally have construed this provision as a limitation on the relief a prisoner can receive for injuries suffered while in custody. Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 807 (10th Cir. 1999). Although mental and emotional distress may constitute a compensable injury in suits for damages based upon violations of constitutional rights, § 1997e(e) provides that such suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harm. Id. In this case, plaintiff is a prisoner confined in a correctional facility, and as such, the PLRA applies to the claims for relief he asserts pursuant to federal law. Plaintiff's claim against Defendant Traub contains no allegation of physical injury as required by the PLRA. Plaintiff contends only that Defendant Traub discussed the anatomical drawing that documented Plaintiff's injuries or lack thereof. [See, Statement of Facts, ¶ 37.] There is no allegation that

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Plaintiff sustained a physical injury as a result of the alleged disclosure. As a result, Plaintiff's claim against Defendant Traub must be dismissed. IV. PLAINTIFF HAS NOT EXHAUSTED HIS ADMINISTRATIVE REMEDIES CONCERNING HIS SECOND AND SEVENTH CLAIMS FOR RELIEF

Plaintiff's Second and Seventh Claims for Relief must be dismissed because Plaintiff failed to exhaust his administrative remedies. The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correction facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In another section of the PLRA, Congress defined a "civil action with respect to prison conditions" as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison." 18 U.S.C. § 3626 (g)(2). Thus, for any claim respecting the conditions of confinement or the effects of prison officials' actions on prisoners, prisoners are required to exhaust the administrative remedies available to them before they may seek relief in the courts. See Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir. 1997). The Colorado Department of Corrections provides a grievance procedure to inmates in its Administrative Regulations, of which this Court may take judicial notice. See Ray v. Aztec Well Service Co., 748 F.2d 888, 889 (10th Cir. 1984) ("This court can take judicial notice of agency rules and regulations."); C.D.O.C. Administrative Regulation No. 850-4, attached hereto as Exhibit A-6. Under that procedure, an inmate must first attempt an informal resolution of his complaint or problem within thirty days of the date the inmate knew or should have known of

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facts giving rise to the grievance. [Administrative Regulation 850-4, § IV(C)(1), (2)]. If this informal attempt fails to resolve the complaint or problem, the inmate must file a Step I grievance. [See id. at § IV(C)(4)(a)]. Likewise, if the inmate disagrees with the outcome of the Step I grievance, he may file a Step II, and then a Step III, grievance. [See id. at § IV(C)(4)(b), (c)]. The resolution of a Step III grievance concludes the grievance process available to

Colorado prisoners, and the denial of a Step III grievance constitutes the exhaustion of their administrative remedies. From a review of the Plaintiff's Amended Complaint and the attachments thereto, it is apparent that Plaintiff has not exhausted his administrative remedies. Plaintiff attached four grievances to his Amended Complaint. In addition, Plaintiff submitted additional grievances along with his Objections to Magistrate Judge Recommendations filed November 4, 2003. A close review of all grievances submitted by Plaintiff show Plaintiff has not exhausted his administrative remedies as to his second and seventh claims for relief. Plaintiff has submitted two Step I grievances. The first, dated July 3, 2002, is attached to Plaintiff's Amended Complaint. It refers to the segregation incident on July 2, 2002 and states that Officer Dycus used excessive force in the application of the restraints. The only other allegation contained in the grievance refers to an allegation against Officers Dycus, Hollman, and Carter for assessing Plaintiff ten additional days of segregation without a hearing. This allegation does not form a part of the Plaintiff's Amended Complaint. The second Step I grievance is attached to Plaintiff's Objections to Magistrate Judge Recommendations. It is dated July 3, 2002 and alleges that Plaintiff was denied his medication on that date while in segregation. Plaintiff attaches two Step II grievances. The first, dated August 5, 2002 (attached to Plaintiff's Amended Complaint),

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states that Officer Dycus denied him a shower, the right to exercise, and his medication on July 2, 2002. Plaintiff's second Step II grievance is attached to his Objections to Magistrate Judge Recommendations and dated August 4, 2002. It asserts Defendant Dycus caused Plaintiff bodily injury though it does not specify when or how injury was caused. Finally, Plaintiff attached two Step III grievances to his Amended Complaint, dated September 3, 2002, and September 6, 2002, alleging Officer Dycus used excessive force when applying restraints on July 2, 2002, and that Plaintiff was denied his medication, ability to shower, right to participate in recreation, and right to seek a medical provider. With the exception of the Step III grievance dated September 6, 2002, none of the Plaintiff's grievances are answered nor is there any evidence that Plaintiff followed procedure and actually submitted the grievances to anyone at the correctional facility. [See, Response to Step III grievance from Edd Gillespie, attached to Plaintiff's Complaint as Exhibit A]. The CDOC grievance procedure is clear that each formal or informal grievance shall be submitted on the appropriate form, signed by the offender, and shall address only one problem or complaint per grievance. [See, Exhibit A-6, at 2, IV.B.e.] Here it is clear that Plaintiff has only established exhaustion as to two claims for relief. A careful review of Plaintiff's exhibits as attached to his Amended Complaint and Objections to Magistrate Judge Recommendations, reveals that Plaintiff has filed a Step 1, 2, and 3 grievance concerning his allegation that Defendant Dycus used excessive force against him in the application of restraints, and has filed a Step 1, 2, and 3 grievance concerning his allegation that Defendant Dycus refused to provide him

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with his medication 2 . Plaintiff has not provided evidence of exhaustion as to his other claims for relief. 3 The PLRA's requirement of exhaustion of administrative remedies is mandatory. See 42 U.S.C. § 1997e(a). Moreover, the requirement of exhaustion applies to all claims for relief separately. It is not sufficient for Plaintiff to file a grievance concerning one alleged violation and consider that to have satisfied his exhaustion requirement for his remaining allegations and claims for relief. As a result of Plaintiff's failure meet this mandatory requirement by failing to file the necessary grievances for the conduct alleged in his Second and Seventh Claims for Relief, Plaintiff's claims are precluded under the PLRA and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). CONCLUSION WHEREFORE, Defendants respectfully request that this Court grant their Motion to Dismiss or Alternatively for Summary Judgment for the reasons more fully set forth above.

2

While Plaintiff's grievances only reference the conduct of Defendant Dycus, in light of the Supreme Court decision in Jones v. Bock, 549 U.S. 199 (2007) that an inmate grievance need not specifically identify each individual responsible for the alleged unconstitutional conduct, Defendants have not moved for dismissal of defendants not named in the grievances on the basis of a failure to exhaust administrative remedies.
3

Additionally, none of the grievances attached to Plaintiff's Objections contain response from prison officials nor has Plaintiff attached a response from the Step 3 grievance officer indicating all steps of the grievances were filed. 24

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DATED this 7th day of August 2008.

s/Jennifer L. Veiga Jennifer L. Veiga, #17093 HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

CERTIFICATE OF MAILING I hereby certify that on this 7th day of August 2004, I have sent a true and correct copy of the foregoing DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY FOR SUMMARY JUDGMENT via United States mail, postage prepaid, addressed to the following: Oloyea D. Wallin, #111389 Crowley County Correctional Facility 6564 State Highway 96 Olney Springs, Colorado 81062

s/Denise Y. Gutierrez, Secretary to Jennifer L. Veiga, #17093 HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS ABOVE NAMED

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