Bradshaw v. Lappin

738 F.Supp.2d 1143

Joseph BRADSHAW, Timothy Tuttamore, and Plaintiffs,

v.Bop Director LAPPIN; ADX Warden Wiley; Unit Team Member Collins; Unit Team Member Sudlow; Unit Team Member Knox; Unit Team Member Madison; Unit Team Member Foster; Unit Team Member Finlan Dr. Leyba; Dr. Nafziger; Dr. Amirkhan P.A. Osagie; Unknown Medical Staff; Unknown Dentist; Unknown Utilization Committee Members; and Unknown Projected Unit Team Members, Defendants.

Civil Action No. 07-cv-02422-MSK-BNB.

United States District Court, D. Colorado.

Sept. 7, 2010.

Joseph Bradshaw, Florence, CO, pro se.

Timothy Tuttamore, Florence, CO, pro se.

Juan Gonzalo Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.

OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT TO DEFENDANTS

MARCIA S. KRIEGER, District Judge.

THIS MATTER comes before the Court pursuant to the Plaintiffs' Motion to Consolidate Cases (# 140); the Magistrate Judge's May 17, 2010 Recommendation, 2010 WL 3547414 (# 203)that the Plaintiffs' Motion for Entry of Default (# 152, as supplemented # 180, 181) be denied, to which no party has filed Objections; the Plaintiffs' Motion for Summary Judgment (# 172), and the Defendants' response (# 249); and the Plaintiffs' Objections (# 253) to the Magistrate Judge's June 30, 2010 Recommendation, 2010 WL 3547418 (# 247)that Defendant Leyba be dismissed from this action without prejudice.¹

FACTS

According to the Amended Complaint (# 205), both Plaintiffs are inmates of the Federal Bureau of Prisons ("BOP"). Their claims in this case can be divided into two unrelated categories. The first set of claims involve allegations that Defendant Lappin has violated the Plaintiffs' rights under the Inmate Financial Responsibility Program ("IFRP"), 28 C.F.R. §§ 545.10-11, by requiring them to develop a financial plan addressing payment of their restitution obligations when 18 U.S.C. § 3572(d) provides that the authority to dictate restitution schedules belongs exclusively to the sentencing court, not the BOP. The Plaintiffs' pro se articulation of claims is occasionally difficult to follow, but as best the Court can determine, the claims relating to the IFRP allege: (i) that Mr. Bradshaw suffered some unspecifiedadverse "refusal consequences" for refusing to allow Defendants Collins, Sudlow, and Madison to collect Mr. Bradshaw's funds under the IFRP, resulting in a violation of the 8th Amendment to the United States Constitution; (ii) that Mr. Bradshaw was improperly prevented from participating in the "step down" process at the BOP's Administrative Maximum ("ADX") facility because he was improperly accused of being in derogation of his IFRP obligations by Defendants Collins, Sudlow, and Knox, thus violating his 8th Amendment rights; (iii) that in January 2007, Mr. Bradshaw was coerced by Mr. Knox to sign an IFRP payment plan, under penalty of additional restrictions on privileges, thus amounting to a violation of his 5th and 8th Amendment rights; (iv) that, as a result of his January 2007 signing of the IFRP plan, Defendants Collins, Sudlow, Foster, and Knox made quarterly deductions of $ 25 from Mr. Bradshaw's account, despite knowing that Mr. Bradshaw was placed on "no IFRP obligation" status as of March 27, 2007, thus violating his 5th and 8th Amendment rights; (v) that Mr. Bradshaw believes that the quarterly deductions from his prison account will continue throughout this litigation, amounting to ongoing violations of his 5th and 8th Amendment rights; and (vi) several claims by Mr. Tuttamore that are essentially similar to those asserted by Mr. Bradshaw with regard coercion to agree to IFRP plans and the subsequent improper collection of Mr. Tuttamore's funds pursuant to that improper IFRP plan.

The second strand of claims asserted in this action relate solely to Mr. Bradshaw and the medical care that the received while incarcerated. As to these claims: (i) Mr. Bradshaw alleges that Defendant Leyba demonstrated deliberate indifference to Mr. Bradshaw's medical needs, in violation of the 8th Amendment, in December 2006, when Defendant Leyba observed certain readings on an EKG test of Mr. Bradshaw that warranted immediate intervention, but instead delayed submitting Mr. Bradshaw's case to a cardiologist until February 2006; (ii) that in February 2006, the Defendant "Jane/John Doe Utilization Committee" manifested deliberate indifference to Mr. Bradshaw's medical needs by denying Mr. Leyba's request for a cardiac consultation for Mr. Bradshaw; (iii) that Defendant Wiley manifested deliberate indifference to Mr. Bradshaw's medical needs by failing to approve a grievance filed by Mr. Bradshaw that sought a direction that Mr. Leyba and the Utilization Committee permit the cardiac consultation; (iv) that Defendant Lappin is culpable for the actions of the Defendants described above, as Mr. Lappin setting out a directive to BOP employees in 2005 directing them to "cut back on operations costs, including, but not limited to, cutting back on medical care and specialist assessments and treatment for inmates"; (v) that Defendant Nafziger demonstrated deliberate indifference to Mr. Bradshaw's medical needs by refusing to carry out his promise of ordering a cardiac consultation for Mr. Bradshaw, after Mr. Bradshaw complained to Mr. Nafziger of chest pains, shortness of breath, and other symptoms; (vi) that Mr. Nafziger manifested deliberate indifference to Mr. Bradshaw's medical needs in 2007 by filing to carry out the BOP's guidelines for inmates diagnosed with hepatitis; (vii) that the Utilization Committee acted with deliberate indifference in denying Mr. Nafziger's request that Mr. Bradshaw receive a liver biopsy; (viii) that Defendants Osagie and Amirkhan have manifested deliberate indifference to Mr. Bradshaw's medical needs by falsifying Mr. Bradshaw's medical records to justify denying treatment to him; (ix) that Mr. Wiley is culpable for the Utilization Committee's denial of the requested biopsy because Mr. Wiley denied Mr. Bradshaw's grievance on this issue by deferring to the discretion of the Utilization Committee;(x) that Mr. Lappin is responsible for the foregoing acts because of his 2005 cost-cutting memo; and (xi) that Defendant Jane/John Doe Health Services Division Director has implemented improperly strict criteria for hepatitis treatment, so as to ensure that prisoners such as Mr. Bradshaw do not receive medically appropriate treatment for their conditions.

The Court will discuss the details of each pending motion as part of its analysis.

ANALYSIS

A. Standard of review

Both Plaintiffs pursue this action pro se. As a result, the Court construes their filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in their use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Pro se status does not relieve the Plaintiffs of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court will treat the Plaintiffs according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).

B. Motion to Consolidate

Mr. Bradshaw seeks to consolidate Bradshaw v. Leyba, D.C. Colo. Civ. Case No. 08-cv-02542-PAB-KLM, with this action. Mr. Bradshaw explains that, in the 2008 action, he alleges the same medical claims against the same Defendants as he does in this action. Mr. Bradshaw explains that he filed the 2008 case to preserve his medical claims while appealing the dismissal without prejudice of those claims in this action. The Defendants have not filed any response to this motion.

The Court finds that consolidation of the cases—more accurately, consolidation followed by dismissal of the 2008 case as moot—is appropriate. Mr. Bradshaw acknowledges that the claims in the 2008 case precisely duplicate those that are asserted here, and, for the time being, those claims remain extant in this action. Mr. Bradshaw contends that he commenced the 2008 suit out of a concern that his statute of limitations on the medical claims would run before his appeal of their dismissal in this suit could be decided, but the Court of Appeals' reversal of the dismissal of those claims vitiates any statute of limitations concern; put differently, if the claims asserted in the 2008 action are timely in that case, then by definition, they would be timely in this earlier-filed action as well. Thus, there is no utility in having a separate case in which Mr. Bradshaw asserts claims that are identical to medical claims he asserts here.

Accordingly, the Court grants the motion to consolidate and consolidates Bradshaw v. Leyba with this case. Having thus consolidated the cases, there is no reason for the Bradshaw v. Leyba case to have any ongoing existence. Mr. Bradshaw admits that the claims in both cases are identical, so however go those claims in this action, so they would go in the Leyba case and vice-versa.² Thus, upon consolidation,the Clerk of the Court is directed to close the Bradshaw v. Leyba case, and all further adjudication of Mr. Bradshaw's medical claims will occur in this action. (To the extent that there are pending motions or other procedural matters in the Bradshaw v. Leyba case, the moving party shall refile that motion in this case within 14 days of this Order.)

C. Recommendation regarding entries of default

The Plaintiffs filed several motions (# 152, 180, 181) seeking entry of default against various Defendants. By Recommendation dated May 17, 2010, the Magistrate Judge found that these motions sought default because the Defendants had not answered a proposed Amended Complaint that the Court had not yet granted...