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Williams v. Aulepp

United States District Court, D. Kansas

November 6, 2018

KRISTINE AULEPP, et al., Defendants.



         This matter is before the court on Defendants' joint Motion to Dismiss (Doc. 71), and on Plaintiff's Motion for Extension of Time (Doc. 127), Motion to Appoint Counsel (Doc. 128), Motion to Continue (Doc. 130), Motion to Enlarge Page Limit (Doc. 131), and Motion for Leave to Supplement (Doc. 133.) The motions have been adequately briefed (Docs. 129, 132, 134, 135, 136), and the court is prepared to rule. For the reasons stated herein, Defendants' Motion to Dismiss (Doc. 71) is GRANTED with respect to all remaining claims and parties. Plaintiff's various motions (Docs. 127, 128, 130, 131, 133) are DENIED or GRANTED IN PART as further described herein.

         I. Background

         Plaintiff is an inmate in the custody of the United States Bureau of Prisons (BOP) serving a 324-month sentence for conspiracy to possess with intent to distribute cocaine base. His projected release date, with application of good conduct time, is November 1, 2022. His pro se Amended Complaint (Doc. 18) asserted twenty-four separate counts against various federal officials, mostly BOP employees at the United States Penitentiary (USP) at Leavenworth, Kansas. (Doc. 18). See also Doc. 19 (accompanying affidavit). The claims primarily challenged the adequacy of medical care provided to Plaintiff, alleged the Defendants retaliated against Plaintiff for filing grievances, and claimed Defendants unlawfully seized Plaintiff's property. The complaint cited Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, and 42 U.S.C. §§ 1985 and 1986 as bases for the court's subject-matter jurisdiction. Judge Crow screened the Amended Complaint and dismissed various counts, in whole or in part, as well as various Defendants.[1] (Doc. 25.) He also dismissed the FTCA and §§ 1985 and 1986 claims, leaving only Bivens claims, and only as to the following counts: 6-9, 12, 13 (as to Defendant Glenna Crews only), 14 (as to Defendant Jarad Herbig only), 15 (as to Defendant Paul Leonhard only), 16 (as to Defendants Claude Maye and John Johnson only), and 19 (only as to the denial of a “bottom bunk pass”). (Doc. 25.) These counts allege deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment (Counts 6, 7, and 19), violation of First Amendment rights (Counts 8 and 9), retaliation for exercising First Amendment rights (Counts 12 through 16), and denial of due process in violation of the Fifth Amendment (Counts 13 through 16).

         On September 11, 2017, Defendants filed a joint motion to dismiss the Amended Complaint. (Doc. 71.) Plaintiff responded by filing approximately ten motions seeking discovery, extensions of time, and other relief. On January 9, 2018, Judge Melgren denied Plaintiff's requests and stated that Plaintiff's response to the motion to dismiss was due January 23, 2018. (Doc. 100.) Plaintiff responded by filing numerous additional motions over the following months, including additional motions for extension of time.

         On May 21, 2018, after the case was transferred to the undersigned judge, the court found that Defendants' motion to dismiss should be converted to a summary judgment motion because it relied on various attached exhibits. (Doc. 125.) The court gave notice to the parties and granted Defendants until June 15, 2018, to file a supplemental brief with any additional exhibits.[2] The court granted Plaintiff until July 6, 2018, to file a response brief with exhibits. (Id. at 2.) The court denied Plaintiff's various other motions and cautioned him that “no further extensions of time to respond to Defendants' motion will be granted.” (Id.)

         Plaintiff responded by filing an additional motion for extension of time (Doc. 127), a motion to appoint counsel (Doc. 128), and a motion for continuance (Doc. 130). On July 16, 2018, Plaintiff filed a motion to enlarge page limits (Doc. 131), a motion for leave to supplement (Doc. 133), and an 87-page response to the motion for summary judgment accompanied by a 49-page affidavit and other exhibits. (Doc. 132.)

         II. Preliminary Motions (Docs. 127, 128, 131, and 133.)

         On June 26, 2018, Plaintiff filed a motion (Doc. 127) for extension of time to respond to Defendants' summary judgment motion. The facts asserted by Plaintiff warrant no further extension of time. Plaintiff has had ample time to file his response and he fails to show that discovery is necessary to the filing of his response. Plaintiff has not demonstrated cause for any further extensions. Additionally, the court will deny the motion as moot because Plaintiff has now filed a response brief (Doc. 132.)

         Plaintiff also filed a motion to appoint counsel (Doc. 128), the fourth such motion he has filed in this case. There is no constitutional right to appointment of counsel in civil cases. Durre v. Dempsey, 869 F.3d 543, 547 (10th Cir. 1989). In considering a motion for appointment of counsel under 28 U.S.C. § 1915, the court considers the merits of a prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted). The court will deny Plaintiff's current request for largely the same reasons cited by Judge O'Hara in denying Plaintiff's previous motion for counsel. (See Doc. 91 at 2.) At this stage, Plaintiff has not shown that the merits of his claims warrant appointment of counsel. Additionally, the claims deal with facts and issues with which Plaintiff has significant familiarity, and he has demonstrated an ability to gather facts and present his claims to the court. His motion for appointment of counsel is accordingly denied.

         Plaintiff's motion to enlarge page limits (Doc. 131) is granted with respect to Plaintiff's 87-page response brief (Doc. 132), but is otherwise denied.

         Plaintiff's motion for leave to supplement asserted that Plaintiff only “file[d] half of his opposition” in the summary judgment response because the court has not ruled on his other motions. (Doc. 133 at 2.) Plaintiff asked that he be allowed to file his remaining opposition and exhibits “in the next seven (7) to fourteen (14) days.” (Id. at 3.) Plaintiff filed an additional brief on August 6, 2018, with exhibits attached. (Doc. 136). The court will consider the latter brief and exhibits as a supplement to Plaintiff's response to summary judgment. Accordingly, Plaintiff's motion for leave to supplement (Doc. 133) is granted to that extent, but is otherwise denied. Plaintiff has not demonstrated that he cannot present facts essential to his opposition to summary judgment without further extensions or discovery.

         III. Defendants' Motion for Summary Judgment (Doc. 71.)

         1. Summary Judgment Standards

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is “material” when it is essential to the claim, and an issue of fact is “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The court views all evidence and reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

         2. Uncontroverted facts.

         Exhaustion of Administrative Remedies.

         The PLRA provides that a confined prisoner cannot bring an action “with respect to prison conditions” under any federal law “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The BOP has a four-part administrative remedy to address inmate complaints concerning any aspect of confinement. (Doc. 72-2 at 3) (citing BOP Program Statement 1330.18, Administrative Remedy Program, available at See also 28 C.F.R. § 542.10 et seq. (regulations adopting administrative procedures). Under that program, an inmate is first required to attempt informal resolution. If that is unsuccessful, the inmate must submit a formal written Administrative Remedy Request to the Warden of the institution within 20 days of the incident. See 28 C.F.R. § 542.14. If the inmate is not satisfied with the Warden's response, he may submit an appeal to the appropriate Regional Director within 20 days. (There are certain exceptions, such as disciplinary decisions by a Discipline Hearing Officer, which may be appealed directly to the Regional Director.) An inmate not satisfied with the Regional Director's response may appeal to the General Counsel within 30 days. Appeal to the General Counsel is the final administrative appeal. Id. § 542.15. The foregoing time limits may be extended when an inmate shows a valid reason for delay. Id. Also, inmates may have another person (including outside sources such as family) assist them in preparing a Request or an Appeal. Id. § 542.16.

         The BOP maintains a nationwide computer database of inmate complaints under the Administrative Remedy Program known as SENTRY, that tracks inmate complaints and appeals. (Doc. 72-2 at 4.) A search of SENTRY shows Plaintiff has filed 411 administrative remedies and appeals since his transfer to USP Leavenworth on October 23, 2013, including 113 appeals to the National Appeals Administrator. (Id. at 5.) Although Plaintiff has clearly been able to exhaust remedies on a multitude of claims, Defendants cite evidence that he did not do so with respect to some of the allegations he now asserts. Specifically, Defendants cite evidence that Plaintiff did not exhaust a claim that Defendant Maye violated his First Amendment rights by threatening him on or about March 25, 2014, or by transferring him out of USP Leavenworth (Counts 9, 16). (Id. at 8-10; Doc. 72-2 at 101-02.) They cite evidence that Plaintiff did not exhaust remedies as to allegations that Defendant Leonhard used a racial slur (Count 15). (Id. at 8-9; Doc. 72-2 at 88, 93.) Finally, Defendants cite evidence that Plaintiff did not exhaust remedies as to claims that Defendant Johnson retaliated by transferring Plaintiff from USP Leavenworth (Count 16.) (Id. at 9-10; Doc. 72-2 at 101-02.)

         Defendant Justin Blevins.

         Commander Justin Blevins served as USP Leavenworth's Health Services Administrator while Plaintiff was at USP Leavenworth. He was a member of the Public Health Service and was providing medical services within the scope of his employment at all times relevant to this suit. (Docs. 72 at 10, 72-2 at 74.)

         Medical treatment at USP Leavenworth.

         Prior to his incarceration, Plaintiff suffered from multiple medical conditions, including a foreshortened gut due to a gunshot wound in approximately 1995, removal of a kidney, and a gunshot injury to his leg. Plaintiff asserts that he also underwent surgery for a stomach ulcer. Since the start of his incarceration in 1998, Plaintiff has suffered from chronic abdominal pain. He has repeatedly sought treatment for abdominal pain at each of the numerous federal institutions where he has been housed. He has also filed grievances at each of these institutions, alleging that the medical care he received for his pain was inadequate. In 2010, while he was housed at a facility in California, Plaintiff suffered a ruptured gallbladder and had to have emergency surgery. (Doc. 132-1 at 1-5.)

         On April 6, 2012, while Plaintiff was housed at a facility in Oregon, he received an esophagogastroduodenoscopy (EGD) and colonoscopy with biopsies, which revealed a normal post-surgical stomach with Billroth II Anastomomosis. The post-operative diagnosis indicated a normal colon with no ulcers, inflammation, polyps or diverticula, and the terminal ileum also appeared normal. The medical provider noted that Plaintiff had heartburn that was presumably caused by bile reflux, although it did not appear to create any notable gastropathy or esophagitis. (Doc. 75 at 3-4.) Plaintiff was prescribed a special diet consisting of six small meals a day, no red meat, and a bland diet. (Id. at 17-22.) The special diet order was set to expire on January 1, 2014.

         Plaintiff had issues complying with his special diet. At La Tuna FCI in Texas, where Plaintiff was housed prior to arrival at USP Leavenworth, a nurse noted on August 31, 2013:

Inmate states that he had been told 3 times to change his [commissary] purchases and continues to purchase spicy, acidic food that are [sic] not correlated and AMA of a bland diet. Upon shake down of inmate's cell in [Special Housing Unit] ¶ 8/30/13, 3 large bags full of items from food services stashed under bed containing apples, tuna, bread, and snickers. [sic] Plan is to [discontinue] 6 meals/day. Inmate may resume bland diet as per self but [without] extra meals that are not being eaten.

Doc. 75 at 23. The note was co-signed by a medical provider.

         On September 10, 2013, Plaintiff received a consultation with a dietician upon a referral of the Regional Medical Director at La Tuna because of Plaintiff's complaints of stomach pain and acid reflux. The dietician recorded that Plaintiff admitted being noncompliant with his medication (omeprazole and simethicone) and his diet. The provider's note stated that Plaintiff would benefit from a bland diet consisting of six small meals per day, but it was “imperative that he is also compliant with medications and commissary purchases.” The note indicated that Plaintiff acknowledged understanding “that if he hoards snacks again the snack order will be [discontinued.]” (Doc. 75 at 25.)

         Plaintiff was transferred from FCI La Tuna to USP Leavenworth on October 23, 2013. Upon arrival, a complete intake screening was performed, and Plaintiff was instructed on how to obtain medical services. During this encounter, Plaintiff was prescribed cyanocobalamin for malabsorption syndrome and lisinopril for hypertension. Plaintiff was again placed on a special diet of six small, bland meals per day and no red meat, which was scheduled to expire on October 22, 2014. (Doc. 76 at 3; Doc. 75 at 32.) Plaintiff was permitted to self-select the no-red-meat and bland diet options from the available menu at the regularly scheduled meals. He was also provided three snacks per day, which may have included peanut butter and crackers or bread, in compliance with options outlined in the BOP's policies.

         On October 23, 2013, Robert King, D.O. (not named as a Defendant in this action) discontinued Plaintiff's prescriptions for omeprazole and simethicone, with a note that Plaintiff would be referred to the commissary for those medications. (Doc.75 at 33.) He did so because of standards in the BOP's National Drug Formulary, which includes a list of medications that BOP medical staff consider to be quality and cost-effective medications for inmates. Pursuant to the Formulary, stomach and heartburn medications (including simethicone and omeprazole) are available over-the-counter (OTC) for purchase by inmates at the commissary. The Formulary provides that inmates are to purchase their stomach medications through the commissary unless they are indigent or, for “H2/PPIs” like omeprazole and ranitidine, unless the inmate is being actively followed in a GI Chronic Care Clinic with documented laboratory findings for specified conditions, including severe GERD and previous GI bypass or ulcer surgery. (Doc. 75 at 119.) According to Defendant Aulepp, Plaintiff did not qualify under these tests. Plaintiff asserts that he does qualify under the Formulary's standards because, according to him, he had ulcer surgery prior to his incarceration, a fact he allegedly told Defendant Blevins. Plaintiff thus contends he should not have had to purchase omeprazole. (Doc. 132-1 at 22.)

         On October 28, 2013, Plaintiff reported to sick call seeking a low-bunk pass, which he had possessed at some point at La Tuna FCI, and an order for his six small meals per day. He also reported the prior gunshot wound in his right leg. Radiology and laboratory requests were ordered to check Plaintiff's abdomen, right ankle, and left knee. An exam showed Plaintiff had a well-healed scar at his ankle and no limited use of his lower right leg. A low-bunk pass was not issued by the provider, Physician's Assistant Michael Swann. (Doc. 75 at 34.)

         The next day, October 29, 2013, Plaintiff saw Aulepp, who continued his prescriptions for lisinopril and cyanocobalamin. Aulepp noted Plaintiff's history of gastrointestinal problems stemming from a foreshortened gut due to an 18-year old gunshot would, including frequent complaints of heartburn and diarrhea. Aulepp instructed Plaintiff to continue medication for his heartburn, which he could purchase through the commissary, and she renewed a dietician's recommendation for six small meals or three meals and three snacks per day. (Doc. 75 at 6, 39-40.)

         Defendant Stanley was Assistant Food Service Administrator at USP Leavenworth. His duties included observing inmates to ensure dietary compliance with BOP rules. In November 2013, Stanley reported to Health Services that he saw Plaintiff give away his snack to another inmate. (Doc. 76 at 5.) Plaintiff contends Stanley fabricated the story, and he cites affidavits from two other prisoners who say they did not see him give a snack away. A November 18, 2013, Health Services staff note entered by a registered nurse stated that a review of commissary items showed Plaintiff is purchasing “non-bland items such as honey pepper log, goya seasoning, Cajun chicken soup, garlic, etc. Consult with Food Service was completed. The inmate is sharing his snack sacks that he had been receiving.” The note stated that “[d]ue to his non-compliance consult made with Dr. Aulepp. Received orders to discontinue special diet from Food Service.” (Doc. 75 at 41.)

         Aulepp approved the discontinuation of Plaintiff's special diet arrangement on November 18, 2013. BOP guidelines for medical diets provided that special diets should be ordered only when they are known to be effective for an inmate's specific medical condition. They further provided such diets may be discontinued if inmates are found to be providing special diet orders to other inmates, are not consuming supplemental feeding orders, or are stockpiling them. (Id. at 128.) The guidelines state that Food Service staff may document noncompliance, but only the authorizing medical provider may discontinue special or medical diets. (Id.) Aulepp states that she discontinued Plaintiff's medical order for six small meals per day due to Plaintiff's noncompliance with his special diet. Although the order was discontinued, Plaintiff was still free to self-select bland, no-meat options from the available menu for three daily meals. While Plaintiff was at USP Leavenworth, he gained approximately 30 pounds. He continued to purchase spicy, acidic food items from the commissary. (Id. at 136-158.)

         On November 29, 2013, Plaintiff reported to sick call complaining of burning in his stomach. It was noted he was not buying the OTC medications as directed and that Plaintiff was “very adamant about not buying ...

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