STEPHAN M. VIDMAR, Magistrate Judge.
This is a civil rights action brought by a prisoner pursuant to 42 U.S.C. § 1983. Civil Rights Complaint Pursuant to 28 U.S.C. § 1983 [Doc. 1] ("Complaint").
This matter is before the Court on Defendants Joseph Pacheco, Michael Gatti, David Gallegos, Fernando Vargas and Aaron Bell's ("Movants") Motion for Summary Judgment on Medical Claims Asserted by Plaintiff [Doc. 30] and Memorandum Brief in Support [Doc. 31] (collectively referred to as "Motion"), filed December 8, 2011. Plaintiff filed his Response to Summary Judgment [Doc. 33] ("Response") on December 19, 2011. Defendants filed their Reply Brief [Doc. 34] ("Reply") on January 3, 2012. I have reviewed the Complaint, the Motion, the Response, and the Reply, construing Plaintiff's pro se filings liberally and holding him to a less stringent standard than that required of a party represented by counsel. See, e.g., Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir. 1989). Having considered the pleadings, briefs, relevant law, and being otherwise fully advised, I find that the Motion should be granted in part and denied in part.
It is clear that Plaintiff is claiming that he was denied appropriate medical care. See Complaint [Doc. 1] at 2. It is equally clear that such allegations are directed at "CMS
I will now cite what I consider to be the pertinent allegations from the Complaint, and then explain how I construe them for purposes of this motion. Beginning at page 6 of the Complaint (under the heading (1)(A)(2) of the Complaint's organization), Plaintiff alleges, in pertinent part:
Complaint [Doc. 1] at 6, continuing onto 5 (page marked "Supporting Fact. Staff Herasment [sic] Sexual Herassment [sic]").
Construing the Complaint liberally, I understand Plaintiff to be alleging that he experienced pain while urinating; he asked to see the medical staff and was taken to see "Nurse Jane"; she denied him medical attention; he subsequently filed a grievance and a tort action against her and others in state court; he then suffered a second episode of pain which caused him to faint/collapse, injuring his head and back; Defendant Burning found him unconscious on the floor; in retaliation for Plaintiff filing the grievance and/or the state court action against Nurse Jane, Defendant Burning delayed notifying the medical staff that Plaintiff needed attention.
In their Motion, Movants assert that they are entitled to summary judgment as a matter of law on all of Plaintiff's claims "related to medical malpractice or medical negligence." [Doc. 31] at 3. They contend that they had no responsibility to provide Plaintiff with medical care because they are not employees of Corizon, Inc., which has, by virtue of its contract with the State of New Mexico, assumed all responsibility for providing healthcare services to inmates of PNM. Id. In support of their Motion they offer the affidavit of William F. Steiger, Vice-President of Operations for Corizon. Id. at 5-6. Mr. Steiger states in his affidavit,
Id. Movants' Statement of Undisputed Facts tracks Mr. Steiger's affidavit nearly verbatim. See Motion [Doc. 31] at 2.
Plaintiff filed his Response on December 19, 2011 [Doc. 33]. He makes no effort to dispute Movant's Undisputed Facts. Id. He does not dispute that Corizon is the sole medical services provider for the PNM. Id. Nor does he assert that Movants were employees of Corizon at the material times. Instead, he argues that
Id. at 1-2. Thus, it seems clear that Plaintiff is not alleging that Movants had a duty to provide him with medical care, but rather that they had a duty to inform the medical staff when they became aware that medical care was needed.
I adopt as undisputed Movant's Undisputed Facts Nos. 1-3 as contained in Section II of the Motion. See [Doc. 31] at 2.
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if 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). The movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) ("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1)(A) provides: "A party asserting that a fact . . . is genuinely disputed must support the assertion by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." It is not enough for the party opposing a properly supported motion for summary judgment to "rest upon mere allegations or denials of his [or her] pleadings." Liberty Lobby, 477 U.S. at 256; see also Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980) ("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123-JAR, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008) (citing Fed. R. Civ. P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus, 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)); Vitkuss, 11 F.3d at 1539. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue of whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the court must resolve all reasonable inferences and doubts in favor of the nonmoving party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999); Liberty Lobby, 477 U.S. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
The standard that courts use to determine whether a prisoner's Eighth Amendment rights have been violated is that of "deliberate indifference." See Wilson v. Seiter, 501 U.S. 294, 297 (1991).
One of the core concerns of the Eighth Amendment is inmate access to necessary medical care. See Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980). In a § 1983 action for damages, "only deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment proscription against cruel and unusual punishment." Id. at 575 (internal quotation marks omitted). A deliberate indifference to serious medical needs may be "manifested . . . [by] denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Nonetheless, delay in medical care, by itself, does not support a constitutional claim. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993). Rather, such delay constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000).
First, I believe all of the Movants are entitled to summary judgment to the extent the Complaint can be read to raise claims of medical malpractice or the negligent provision of medical care. As discussed above, a fair reading of the Complaint demonstrates that Plaintiff's allegations fall into two categories: those against the medical staff (either for refusing to provide medical care, or for providing inadequate medical care), and those against PNM employees for ignoring Plaintiff's need for medical care (and thus delaying it). I do not believe Plaintiff seeks to hold non-medical PNM employees, such as Movants, responsible for the inadequate medical care he claims to have received. But to the extent the Complaint can be read to allege that, I believe Movants have established that they are entitled to summary judgment as a matter of law.
With respect to the second category of claims, I believe Plaintiff's Complaint and his Response to the Motion raise a genuine issue of fact regarding whether one of the Defendants, specifically Defendant Burning, intentionally delayed notifying the medical staff of Plaintiff's need for medical treatment.
I therefore
I
Once all necessary parties are in the case, I will order the Defendants to submit Martinez reports on the remaining claims.
