United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This matter comes before the court upon defendant's Motion for Summary Judgment (Doc. 15) and plaintiff's "Memorandum in Opposition" (Doc. 18) to defendant's motion. Having fully considered these pleadings and all materials in the file, the court concludes for the following reasons that defendant Aulepp has shown that "no disputed material fact exists regarding the defenses asserted" and movant is entitled to a judgment as a matter of law." Rule 56(a), Federal Rules Civil Procedure; Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
At the time this Bivens  action was filed, Mr. Dalton was an inmate of the United States Penitentiary, Leavenworth, Kansas (USPL). In his complaint, Mr. Dalton claimed that he was being denied necessary medical treatment for his two major health issues: Hepatitis C (HCV) and a bone infection in his spine, that treatment has been delayed, and that he has been denied stronger medication necessary for his chronic back pain. In support of his claims, plaintiff alleged the following. He entered federal prison in 2010 with serious health conditions of which his sentencing judge was aware. In February 2012, he was transferred from FCI-Talladega to FCI-Williamsburg, Salters, South Carolina. During this time he encountered delays in treatment because "procedures and tests" were "mostly restarted" and he was given "medication that doesn't help and is horrible on (his) liver." In July 2012, medical staff at Williamsburg submitted his case for approval for HCV treatment; however, he was bussed to the USPL the following day. Upon his confinement at the USPL, he "had medications taken from" him and was "placed only on Tylenol and Gabapentin" both of which are not sufficient for chronic pain and "horrible on your liver" especially for persons with HCV. Dr. Aulepp took him off medications prescribed by prior physicians and refused to switch him to "a proper pain med with less effects" on his damaged liver. He has suffered "severe chronic pain throughout (his) entire stay" at the USPL.
In addition to his medical claims, plaintiff asserts that work assignment and "housing orders" violated his rights under the Equal Protection Clause and the Eighth Amendment in that they amounted to cruel and unusual punishment. In support he alleges that he was mistakenly assigned to a top bunk and that "even though the doctor said" he was not cleared "for food service, " he was placed in food service for around two months where he worked as a server and possibly contaminated others.
Plaintiff seeks declaratory and injunctive relief in the form of a court order requiring defendant to provide him with "a civilian style medicine for pain, " in particular "Oxycodone or Morphine;" a spine biopsy to determine type of infection; and to have him "prepared by liver specialist and infectious disease specialist" for him "to undergo hepatitis treatment immediately." In addition, he seeks nominal, compensatory, and punitive damages.
In a prior order, the court converted defendant Aulepp's Motion to Dismiss to a Motion for Summary Judgment, gave Mr. Dalton time to respond to defendant's motion, and notified plaintiff that in formulating his response he must adhere to the requirements of Rule 56. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Plaintiff was cautioned that a party opposing a properly supported motion for summary judgment "must set forth specific facts showing a genuine issue for trial." Id. Plaintiff was further instructed that in order to adequately oppose this summary judgment motion, he was required to file a "Memorandum in Opposition" that included the following. It must "begin with a section containing a concise statement of material facts as to which (he) contends a genuine issue exists;" and each fact that he claims is in dispute must be numbered and "refer with particularity to those portions of the record upon which (plaintiff) relies." He was also informed that he was required to abide by Subsection (d) of Rule 56.1 (Presentation of Factual Material), which provides:
All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories, and responses to requests for admissions. Affidavits must be made on personal knowledge and by a person competent to testify to the facts stated that are admissible in evidence. Where facts referred to in an affidavit or declaration are contained in another document that is not already a part of the court file, a copy of the relevant document must be attached.
Id. Finally, Mr. Dalton was specifically advised that defendant Aulepp had raised the affirmative defense of failure to exhaust and if she met her initial burden of demonstrating that "no disputed material fact exists regarding" this affirmative defense, he "must then demonstrate with specificity the existence of a disputed material fact." Id.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In her Motion for Summary Judgment, defendant Dr. Aulepp argues that plaintiff failed to exhaust administrative remedies on his claims against her concerning conditions at the USPL. Defendant asserts that as a result, this action must be dismissed pursuant to 42 U.S.C. § 1997e(a). Defendant argues additional grounds for dismissal including that she provided necessary and proper medical treatment to plaintiff at the times in question and thus he cannot show deliberate indifference and establish a violation of the Eight Amendment.
PLAINTIFF'S OPPOSITION TO MOTION
In opposition to defendant's motion, plaintiff first addresses her argument that he failed to exhaust administrative remedies, which he recognizes as "their strongest argument." Plaintiff alleged the following in his complaint with respect to exhaustion. He filed a grievance prior to his confinement at the USPL, and "the most recent remedy" was returned from Central Office. He "had a hard time getting grievances answered" at the USPL and "used all" remedies to no avail prior to filing this action. He stated that he enclosed the "most important" grievances. In his Opposition, plaintiff argues that the USPL is the third prison he has been housed in since his confinement began in March 2010 and claims "there is no way to win if they continue to move you around." He also argues that since defendant Aulepp is an employee of the Bureau of Prisons (BOP) he was "her responsibility" and he should not have to exhaust "in-house" administrative remedies at every prison "when it is all in some file." He appears to also argue that exhaustion should not be required on his claim against Dr. Aulepp in her individual capacity because her duty to protect him under her "HIPPA oath" is "unrelated to prison standards."
With respect to his medical claims, plaintiff makes the following arguments. "FCI Williamsburg" had completed his HCV treatment packet "and already had (him) cleared through two ortho visits saying (he) was okay, " then at the USPL the "same excuses come into effect." It is unfair that he has been "shifted around" and had to go through the "months long process" to get the same responses when he has been within the "same system." He is only 23 years old, part of his sentence was to provide adequate time for him to receive proper medical care. Instead, a "ton of testing" has been done to establish his condition, and his medical issues have not been resolved. He "should have received more treatment and not just tests" and will be released from prison without the medical treatment he needs. Defendant Aulepp in her motion falsely accused him of assaulting another inmate to affect his credibility with the court and falsely stated that he has had past substance abuse problems. However, he has never had an incident report related to drug use in prison. He disagrees with defendant's statement that he "never had to use narcotics to treat (his) long term pain" and counters with names of two doctors and pharmacies in Tennessee who apparently provided narcotic pain medications for his chronic back pain prior to his incarceration. He has not been allowed to take narcotic drugs in prison because he has never been assigned to a Federal Medical Center, where it "couldn't have ever been an issue." Finally, plaintiff argues that he should be provided narcotic pain medications at the USPL because pain medications are "closely monitored" so there is "no risk of abuse" and he is willing to sign any type of contract to receive these medications.
The court finds the undisputed facts to be as follows.
1. Plaintiff was incarcerated at the Federal Correctional Institution in Talladega, Alabama (FCI-Talladega) from March 31, 2010, through February 2, 2012. He was incarcerated at FCI-Williamsburg in South Carolina, from February 10, 2012 ...