PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge Michael J. Watanabe [Docket No. 148] (the "Recommendation") and the Motion for Summary Judgment [Docket No. 160] and Objection to Magistrate Judge's Order Denying Motion to Appoint Pro Bono Representation [Docket No. 165] filed by plaintiff Alexis R. Ortiz.
The magistrate judge recommends that the Court grant the motion for summary judgment [Docket No. 136] filed by defendants Beverly Dowis ("Ms. Dowis") and Lieutenant Hoffman ("Lt. Hoffman"). Plaintiff filed timely objections to the Recommendation. See Docket No. 152.
The Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). In the absence of a proper objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). An objection is proper if it is specific enough to enable the Court "to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute." United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff's pro se status, the Court construes his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991).
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
At all times relevant to this lawsuit, plaintiff was an inmate at the Sterling Correctional Facility in Sterling, Colorado ("SCF"). Docket No. 11 at 2, ¶ 1; see also Docket No. 136 at 1, ¶ 1. Plaintiff initiated this action seeking relief related to loss of function in his left leg and foot. On October 20, 2010, plaintiff slipped and fell in the SCF kitchen, injuring his back. See Docket No. 11 at 4. Plaintiff underwent an MRI in August 2012 and had a laminectomy
The Eighth Amendment's ban on cruel and unusual punishment is violated if a defendant's "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain." Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A claim for deliberate indifference has both an objective and a subjective component. To satisfy the objective component, a prisoner must demonstrate that his medical need is "objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is sufficiently serious if "it is one 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) (citation omitted).
To satisfy the subjective component, a prisoner must demonstrate that the defendant acted with a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. "`[D]eliberate indifference' is a stringent standard of fault." Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 410 (1997). "[T]he subjective component is not satisfied, absent an extraordinary degree of neglect." Self, 439 F.3d at 1232. Instead, the defendant must "know[] of and disregard[] an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. That is, "the 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 Tenth Circuit has recognized three types of conduct which may constitute deliberate indifference in a prison medical case: (1) a medical professional failing to treat a serious medical condition; (2) a prison official preventing an inmate from receiving medical treatment; or (3) a prison official denying a prisoner access to medical personnel capable of evaluating the inmate's condition. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).
Plaintiff objects to the magistrate judge's finding that plaintiff has not demonstrated a genuine dispute of material fact regarding Ms. Dowis' personal involvement in deliberate indifference to his serious medical need. Docket No. 152 at 1-4. The magistrate judge found that plaintiff repeatedly referred to the actions of "Dowis and her staff" and did not provide any evidence of actions or omissions specific to Ms. Dowis. See Docket No. 148. Plaintiff's objection suffers from the same defect, simply reiterating that plaintiff's claim against Ms. Dowis is based on alleged inattention by "Def. Dowis and her subordinate care providers." Docket No. 152 at 2 (emphasis added). This is insufficient to create a genuine dispute of material fact concerning whether Ms. Dowis violated plaintiff's Eighth Amendment rights, as the Court cannot determine from the record what Ms. Dowis is alleged to have done (or refused to do) that constitutes deliberate indifference. To the extent that plaintiff seeks to hold Ms. Dowis responsible, in her role as a supervisor, for the delay between plaintiff's injury and his corrective surgery, he cannot sustain a claim for deliberate indifference without pointing to a specific, deliberate action or omission. See Serna v. Colo. Dep't of Corrs., 455 F.3d 1146, 1151 (10th Cir. 2006) ("it is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation. Instead, the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights") (quotation and ellipses omitted). Plaintiff fails to do so. Plaintiff makes only vague statements that Ms. Dowis "refuse[d] to act for years despite [plaintiff's] requests to her" and that he was "forced to debate the decline of his physicality" with Ms. Dowis "for time on end." Docket No. 152 at 3. Yet plaintiff points to no specific instance where Ms. Dowis denied him care. Because plaintiff has not provided evidence sufficient to create a genuine dispute of material fact concerning Ms. Dowis' personal participation in any deliberate indifference to his serious medical needs, the Court finds no error with this aspect of the Recommendation.
Plaintiff objects to the magistrate judge's finding that plaintiff failed to satisfy the subjective component of the deliberate indifference claim. The magistrate judge held that Lt. Hoffman's uncontroverted affidavit established that, contrary to the allegations in plaintiff's complaint, plaintiff had no bottom bunk restriction at the time Lt. Hoffman moved plaintiff to an upper bunk. See Docket No. 148 at 9-10. The Court finds that plaintiff has not produced any evidence that Lt. Hoffman was aware of a lower bunk restriction. Plaintiff states that Lt. Hoffman acknowledged that plaintiff was issued a cane and it is "well known throughout the prison system that
On multiple occasions, the magistrate judge has denied motions that plaintiff filed seeking appointment of pro bono counsel and an independent medical expert. Plaintiff has filed objections to two such orders. See Docket No. 152 at 5-6 (objecting to Docket No. 151); see also Docket No. 165 (objecting to Docket No. 162). The Court has reviewed the relevant orders and finds no error. The magistrate judge declined to direct the Clerk of the Court to attempt to obtain volunteer counsel in light of his recommendation that defendants' motion for summary judgment be granted. See Docket No. 151 at 1; see also Docket No. 164 at 1. Whether to seek volunteer counsel for a pro se civil litigant is within the court's broad discretion. See Murphy v. Colo. Dep't of Corrs., No. 06-cv-01948-REB-BNB, 2009 WL 2959205 (D. Colo. Sept. 10, 2009) (citing DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993)). The Court finds that the magistrate judge did not abuse his discretion in declining to seek pro bono counsel to represent plaintiff in this matter.
Regarding plaintiff's motion to appoint a medical expert pursuant to Fed. R. Evid. 706, the magistrate judge found no technical issues in the case that would require an independent medical expert. See Docket No. 151 at 2. The decision whether to appoint a medical expert is, like the decision to seek pro bono counsel for a litigant, one over which courts have broad discretion. See Ga. Pac. Corp. v. United States, 640 F.2d 328, 334 (Ct. Cl. 1980) ("court appointment of expert witnesses is within the discretion of the trial judge"). Plaintiff states that he seeks appointment of a medical expert because the causes of lumbar spinal stenosis "are not within the common knowledge of lay people." Docket No. 152 at 5. Because the Court has found that defendants are entitled to summary judgment on grounds other than causation, the Court agrees with the magistrate judge that it would be inappropriate to appoint an independent medical expert in this matter.
For the foregoing reasons, it is
