Case 5:19-cv-03025-JAR Document 241 Filed 12/01/23 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`PAUL GUEBARA,
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`Plaintiff,
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`v.
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`KEVEN BASCUE, et al.,
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`Defendants.
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` Case No. 5:19-CV-3025-JAR
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`MEMORANDUM AND ORDER
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`Plaintiff Paul Guebara, a prisoner proceeding pro se and in forma pauperis, brings this 42
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`U.S.C. § 1983 action asserting that employees of the Finney County Jail and the Finney County
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`Health Department violated his Eighth and Fourteenth Amendment rights. Plaintiff alleges that
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`all defendants were deliberately indifferent to his serious medical needs by failing to treat his
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`Hepatitis-C (“Hep-C”) during the time in which Plaintiff was detained in the Finney County Jail
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`(“FCJ”). Plaintiff names as Defendants the following FCJ employees: Sheriff Keven Bascue,
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`Administrator Mark Welch,1 Captain Jeff Orebaugh, Lieutenant Kyle Lawson, and Jail Nurse
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`Michelle Newsome2 (collectively, “Jail Defendants”). Plaintiff also names as Defendants the
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`Finney County Health Department (“FCHD”), and the following FCHD employees: Director
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`Harold Perkins, M.D., Advanced Practice Registered Nurse (“APRN”) Hannah Britt,3 and APRN
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`1 On the docket sheet, Defendant Welch’s name is spelled “Welsh,” which is how Plaintiff spells it in his
`Complaint. The Court adopts the spelling “Welch” as this is the spelling used by Defendants in their briefings and
`exhibits. See Doc. 217-6 (Welch Affidavit).
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`2 Defendant Newsome was the contract nurse at FCJ, though she was employed by FCHD. She is
`represented by the attorney for the jail and is joined in the Jail Defendants’ motion.
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`3 Hannah Britt was known by her maiden name at the time the events underlying this suit took place,
`therefore she is listed as “Hannah Douty” in Plaintiff’s Amended Complaint. Doc. 88. The Court refers to her
`married name, Britt, in this Order.
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`Case 5:19-cv-03025-JAR Document 241 Filed 12/01/23 Page 2 of 29
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`Gretchen Dowdy (collectively, “FCHD Defendants”). Plaintiff sues all defendants in their
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`individual and official capacities.
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`This matter is before the Court on Plaintiff’s Motion for Summary Judgment (Doc. 209),
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`Jail Defendants’ Cross-Motion for Summary Judgment (Doc. 216), and FCHD Defendants’
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`Cross-Motion for Summary Judgment (Doc. 214).4 Plaintiff has also filed a Motion to Withdraw
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`Objections (Doc. 230). The motions are fully briefed and the Court is prepared to rule. For the
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`reasons explained below, the Court denies Plaintiff’s motion for summary judgment, grants Jail
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`Defendants’ motion for summary judgment, and grants FCHD Defendants’ motion for summary
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`judgment. The Court also grants Plaintiff’s motion to withdraw objections.
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`Furthermore, the Court determines that the Clerk’s entry of default against Dowdy shall
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`be set aside. The Court gives Plaintiff notice of its intent to enter summary judgment for Dowdy,
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`and orders him to respond to this notice within 30 days or summary judgment will be entered for
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`Dowdy.
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`I.
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`Legal Standards
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`Summary judgment is appropriate if the moving party demonstrates that there is no
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`genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.5 In
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`applying this standard, the court views the evidence and all reasonable inferences therefrom in
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`the light most favorable to the nonmoving party.6 “There is no genuine [dispute] of material fact
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`unless the evidence, construed in the light most favorable to the non-moving party, is such that a
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`4 Defendant Dowdy did not join the FCHD Defendants’ motion. She did not respond to this suit and the
`clerk entered default against her on November 16, 2022. Doc. 170.
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`5 Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
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`6 City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
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`reasonable jury could return a verdict for the non-moving party.”7 A fact is “material” if, under
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`the applicable substantive law, it is “essential to the proper disposition of the claim.”8 A dispute
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`of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact
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`could resolve the issue either way.”9 To prevail on a motion for summary judgment on a claim
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`upon which the moving party also bears the burden of proof at trial, the moving party must
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`demonstrate that “no reasonable trier of fact could find other than for the moving party.”10
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`The moving party initially must show the absence of a genuine dispute of material fact
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`and entitlement to judgment as a matter of law.11 Once the movant has met the initial burden of
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`showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving
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`party to “set forth specific facts showing that there is a genuine issue for trial.”12 The nonmoving
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`party may not simply rest upon its pleadings to satisfy its burden.13 Rather, the nonmoving party
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`must “set forth specific facts that would be admissible in evidence in the event of trial from
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`which a rational trier of fact could find for the nonmovant.”14 In setting forth these specific
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`facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or
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`specific exhibits incorporated therein.”15 A nonmovant “cannot create a genuine issue of
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`7 Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242, 248, 255 (1986)).
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`8 Wright ex rel. Tr. Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing Adler
`v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
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`9 Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248).
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`10 Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015).
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`11 Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
`477 U.S. 317, 322–23 (1986)).
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`12 Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (quoting Matsushita
`Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
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`13 Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
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`14 Mitchell v. City of Moore, 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 670–71).
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`15 Adler, 144 F.3d at 671.
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`material fact with unsupported, conclusory allegations.”16 A genuine issue of material fact must
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`be supported by “more than a mere scintilla of evidence.”17
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`The Court applies this same standard to cross motions for summary judgment. Each
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`party bears the burden of establishing that no genuine issue of material facts exists and that they
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`are entitled to judgment as a matter of law.18 “Cross motions for summary judgment are to be
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`treated separately; the denial of one does not require the grant of another.”19 But where the cross
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`motions overlap, the Court may permissibly address the legal arguments together.20 Each motion
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`is viewed in the light most favorable to the non-moving party.21
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`Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
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`is an important procedure “designed to ‘secure the just, speedy and inexpensive determination of
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`every action.’”22 In responding to a motion for summary judgment, a party cannot rest on
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`“ignorance of the facts, on speculation, or on suspicion” to escape summary judgment.23
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`In deciding this motion, the Court is mindful that Plaintiff proceeds pro se; therefore, the
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`Court must construe his pleadings liberally.24 However, pro se plaintiffs may not rely on
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`conclusory allegations to overcome their burden to establish that a genuine issue of material fact
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`16 Tapia v. City of Albuquerque, 170 F. App’x 529, 533 (10th Cir. 2006) (citing Annett v. Univ. of Kan., 371
`F.3d 1233, 1237 (10th Cir. 2004)).
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`17 Black v. Baker Oil Tools, Inc., 107 F.3d 1457, 1460 (10th Cir. 1997).
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`18 See Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
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`19 Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (citation omitted).
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`20 Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010) (citation omitted).
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`21 Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
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`22 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
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`23 Genzer v. James River Ins. Co., 934 F.3d 1156, 1160 (10th Cir. 2019) (quoting Conaway v. Smith, 853
`F.3d 789, 794 (10th Cir. 1988)).
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`24 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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`exists.25 The Court cannot assume the role of advocate,26 nor can the Court “supply additional
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`factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
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`behalf.”27 Additionally, a pro se litigant is not excused from complying with the rules of the
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`court and is subject to the consequences of noncompliance.28
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`II.
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`Uncontroverted Facts
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`The following material facts are either uncontroverted, stipulated, or viewed in the light
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`most favorable to the non-moving party. The Court disregards conclusory allegations without
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`specific supporting facts that do not have probative value29 and “statements of mere belief.”30
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`The Court does not consider facts presented by the parties that the record does not support or that
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`are not relevant to the legal issues presented. Nor does the Court consider legal arguments
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`included in the parties’ statements of fact.
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`Plaintiff was diagnosed with Hep-C in 2003. Hep-C can be a chronic condition, and
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`some people can live with it for years without a serious increase in liver damage. Thirty percent
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`of people with Hep-C will clear it without medical treatment. Plaintiff was diagnosed while
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`serving time for an unrelated offense at a Kansas Department of Corrections (“KDOC”) facility.
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`After his release, Plaintiff was arrested in 2015 for a subsequent offense and lodged at FCJ
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`awaiting trial. Plaintiff was detained in FCJ from February 26, 2015, to March 21, 2019. During
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`25 Hastings v. Campbell, 47 F. App’x 559, 560 (10th Cir. 2002).
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`26 Hall, 935 F.2d at 1110.
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`27 Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
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`28 Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276,
`1277 (10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro
`se cases for failure to comply with the rules)).
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`29 Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143 (10th Cir. 2005) (citations omitted).
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`30 Argo v. Blue Cross Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (quoting Tavery v.
`United States, 32 F.3d 1423, 1427 n.4 (10th Cir. 1994)).
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`this time, Plaintiff did not receive treatment for Hep-C and he was not exhibiting symptoms
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`indicating an immediate need for treatment. It was the FCJ policy to provide medical treatment
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`that was obviously necessary and to follow the recommendations and advice of inmates’
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`physicians concerning treatment.
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`When Plaintiff was booked into FCJ in 2015, he completed a medical screening form.
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`Plaintiff did not indicate that he had previously tested positive for Hep-C. In June of 2015,
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`Plaintiff submitted a medical care request form which reported that he had stomach pain.
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`Plaintiff related this stomach pain to the blood pressure medication he was taking, and he was
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`advised by the FCJ nurse, Defendant Newsome, to take the medication with a meal. Newsome
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`was Plaintiff’s first point of contact for medical care. Newsome acted as liaison between FCJ
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`and FCHD, as well as between FCJ and other health providers.
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`After Plaintiff continued to report that he was in pain, he was transported to see outside
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`healthcare providers on July 7, 2015. Plaintiff was also seen by a Compass Health Doctor for
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`stomach pain on September 4, 2015, who recommended that he take his medication with food.
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`Plaintiff filed a request for medical care on September 8, noting that “Dr. Jack” had put him in
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`for a snack at night since his medications hurt his stomach. Newsome responded that Plaintiff
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`could use commissary for snacks, but that the doctors do not have the authority to make
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`decisions about snacks. In response, Plaintiff asked to be taken off all medications.
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`Plaintiff continued to request medical care for his stomach pain and was seen by
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`Newsome on September 17, 2015. Newsome noted that Plaintiff had high blood pressure and
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`bloating in his stomach, and an APRN at FCHD reviewed the findings and ordered a prescription
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`for omeprazole. Plaintiff was also scheduled for a visit at FCHD on September 28, 2015. On
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`this visit, Defendant Britt ordered a CT scan of Plaintiff’s stomach, as well as blood work. The
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`blood work was completed on September 30, 2015, and indicated that Plaintiff was “reactive” to
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`Hep-C and that he had a bacterial infection (H. pylori). The lab report stated that supplemental
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`testing was recommended for the Hep-C as clinically indicated. Based on these results, Britt
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`called Newsome to prescribe antibiotics to treat the bacterial infection and continue the
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`omeprazole. Britt also noted in a record that Plaintiff’s liver enzymes were mildly elevated and
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`that she “[would] attempt to add a hepatitis panel acute.”31 This panel was not ordered.
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`Plaintiff had his CT scan on October 14, 2015, which showed a hiatal hernia and possible
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`gastritis, but showed that the liver, gallbladder, pancreas, spleen, and both kidneys were
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`“unremarkable.”32 Newsome discussed the results of the blood work with Plaintiff on November
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`9, 2015, regarding both the infection and the Hep-C.33 At this time, Newsome provided Plaintiff
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`with information about Hep-C and hernias. Plaintiff also requested curative treatment for his
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`Hep-C at this time, but Newsome told him that he would not receive treatment because the jail
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`would not pay for it.
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`Meanwhile, on October 17, 2015, Plaintiff was found unconscious in his cell and sent to
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`the St. Catherine Hospital emergency room, where he remained for three days. Matthew Byrnes
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`was the emergency room doctor who treated Plaintiff during this time. In Dr. Byrnes’ report,
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`which detailed his attempts to discover the cause of Plaintiff’s collapse, he noted that Plaintiff
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`had Hep-C but did not attribute the collapse to the Hep-C, stating “will just monitor this for
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`now.”34 Dr. Byrnes conducted numerous tests while Plaintiff was in the emergency room,
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`31 Doc. 217-33.
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`32 Doc. 209-4 at 54.
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`33 Doc. 209-5 at 3.
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`34 Doc. 209-4 at 11–12.
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`including blood cultures, a “tox screen,” lumbar puncture, brain scans, and “EEG.”35
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`Nevertheless, Dr. Byrnes was not able to identify the cause of Plaintiff’s collapse and resulting
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`symptoms, noting on his discharge sheet that he “[did] not have a good explanation for all
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`this.”36 FCHD records from October 20, 2015, note that Plaintiff was again not taking any of his
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`medications and refusing all care.37
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`On January 14, 2016, Newsome saw Plaintiff for high blood pressure. At this point,
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`Plaintiff had been refusing to take his medications for months. Plaintiff agreed to take the
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`medications after she explained the danger of high blood pressure, but only “to prove they don’t
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`work.”38
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`Plaintiff did not report further stomach pain until August 25, 2017, and he stated on the
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`medical request form that the pain had started three weeks earlier. In response, Newsome
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`scheduled Plaintiff for an exam at FCHD. On October 2, 2017, Defendant Dowdy ordered a
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`“prostrate-specific ag” test (“PSA”) and a comprehensive metabolic panel, which included a
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`“hepatitis panel acute.” The results indicated that Plaintiff’s PSA levels were elevated and that
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`he was “reactive” to Hep-C. Regarding the Hep-C panel, the lab noted that retesting on a second
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`sample was needed, if clinically indicated. Dowdy did not order a second sample for retesting.
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`On October 9, 2017, Dowdy phoned Newsome and made a written record of the phone
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`call.39 In that record, Dowdy wrote that she discussed the Hep-C diagnosis and the elevated PSA
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`with Newsome, and that Newsome indicated that Plaintiff was aware of the Hep-C. Dowdy also
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`35 See id. at 11–18.
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`36 Id. at 14.
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`37 Doc. 217-15.
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`38 Doc. 217-39.
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`39 Doc. 209-4 at 58.
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`noted that Plaintiff had been refusing all recommended medications “for HTN and gastritis” and
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`that Plaintiff refused to provide a stool sample for H. pylori testing.
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`On November 10, 2017, Plaintiff submitted a medical care request form to Newsome
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`asking about the cure and treatment for Hep-C, as well as why he had not been getting treatment.
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`In response, Newsome consulted Dowdy about whether Plaintiff needed Hep-C treatment, and
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`Dowdy advised that Plaintiff was not symptomatic and not in immediate need of treatment. Not
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`all people with Hep-C should be provided with curative treatment, and patient selection is
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`important to success. Given Plaintiff’s non-compliance with medical care, he was not a good
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`candidate for curative treatment. Dowdy and Newsome knew that Plaintiff’s stay in the FCJ was
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`temporary, and that the treatment would be available to him without interruption in KDOC.
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`Plaintiff filed a grievance on January 10, 2018, to FCJ Administrator Defendant Welch,
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`where he complained that FCJ was denying him treatment for Hep-C and his stomach ailment.
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`Welch wrote a response to Plaintiff, explaining in part that Plaintiff did not have a medical need
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`with immediate life threatening implications. Welch also noted that when FCJ did respond to
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`Plaintiff’s requests for treatment, Plaintiff did not cooperate and hindered treatment. Welch
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`pointed specifically to Plaintiff’s numerous refusals of blood pressure medication and Plaintiff’s
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`non-compliance with providing a stool sample. Welch also spoke with medical personnel at
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`FCHD about Plaintiff’s request for Hep-C treatment, and was advised that it would be best to let
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`the Hep-C treatment Plaintiff requested be provided at the KDOC facility.
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`At some point between October and January, Plaintiff provided a stool sample for
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`bacterial testing but it was lost by the laboratory. Newsome informed Plaintiff that it was lost on
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`January 22, 2018, and requested that Plaintiff provide another sample. Plaintiff provided another
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`stool sample on April 12, 2018, and Newsome sent it to the laboratory. On April 30, 2018,
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`Plaintiff was seen for stomach pain by Dr. Jenna Fry at Genesis, and she prescribed omeprazole
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`and amlodipine, as well as ordered another CT scan. Plaintiff did not take these medications.
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`Plaintiff saw Dr. Fry again on May 31, 2018 for a check-up. Dr. Fry noted that Plaintiff
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`had not been taking his blood pressure medication and that he discontinued omeprazole because
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`it made the pain worse. Dr. Fry referred Plaintiff to St. Catherine Hospital Dr. Kurt Kessler for a
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`colonoscopy, and Dr. Kessler saw Plaintiff for a medical history and physical exam on June 25,
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`2018. Dr. Kessler noted that Plaintiff had Hep-C in his history section, and noted that Plaintiff’s
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`liver enzymes were mildly elevated. Dr. Kessler did not order any testing or treatment for the
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`Hep-C. After discussion with Plaintiff about the surgical risks, Dr. Kessler scheduled a
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`colonoscopy and upper endoscopy exam to try to find a cause for the stomach pain. On June 27,
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`2018, Plaintiff submitted a medical request form stating “don’t order meds” and Newsome
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`confirmed that no medication had been ordered.
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`Dr. Kessler conducted the colonoscopy and upper endoscopy exam on September 24,
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`2018. Dr. Kessler found mild antral gastritis and noted that the colonoscopy was totally
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`normal.40 Dr. Kessler had a follow-up visit with Plaintiff on October 26, 2018, where he
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`discussed a possible gallbladder ultrasound with Plaintiff and the accompanying officers. Dr.
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`Kessler also noted the possibility of secondary gain, and continued Plaintiff’s Prilosec
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`medication.41 On October 28, 2018, Plaintiff filed a medical care request form asking to be
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`taken off his medication. Newsome responded that Dr. Kessler wanted Plaintiff on the
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`medication long term, but Plaintiff confirmed that he wanted to discontinue the medication.42
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`40 Doc. 209-4 at 56.
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`41 Doc. 217-29.
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`42 Doc. 217-25.
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`In 2019, Plaintiff was convicted and transferred to a KDOC facility. Within a week of
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`Plaintiff’s transfer to KDOC, he received testing for Hep-C and was soon enrolled in Hep-C
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`treatment. Plaintiff was cured of Hep-C within a few months and his liver enzymes were within
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`normal limits. In July 2019, a KDOC test revealed that Plaintiff had Stage Two fibrosis in his
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`liver, which is identified as moderate fibrosis.
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`III. Discussion
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`Plaintiff asserts deliberate indifference claims against all Defendants under § 1983, in
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`both their individual and official capacities. Defendants invoke qualified immunity as a defense
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`to the individual capacity claims. As explained in detail below, Plaintiff fails to overcome the
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`qualified immunity hurdle because he does not show that Defendants violated his constitutional
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`rights by being deliberately indifferent to his serious medical needs. He also fails to carry his
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`burden on the second prong of the qualified immunity test to cite to clearly established case law
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`supporting his claim. The Defendants are entitled therefore to qualified immunity. Moreover,
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`the Court’s finding that Defendants did not violate Plaintiff’s constitutional rights precludes
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`official capacity liability.
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`A.
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`Individual-Capacity Claims
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`Section 1983 provides for suit against a government official to impose individual liability
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`for actions taken under color of state law.43 In order to establish individual liability under §
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`1983, a plaintiff need only show that the official, “acting under color of state law, caused the
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`deprivation of a federal right.”44 It is Plaintiff’s burden under § 1983 “to establish what each
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`43 Kentucky v. Graham, 473 U.S. 159, 165 (1985).
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`44 Id.
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`defendant actually did and how that act (or omission) violated [Plaintiff’s] constitutional
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`rights.”45
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`However, suing a state official in his individual capacity opens the door for the official to
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`assert the defense of qualified immunity, as each individual Defendant asserts here. “Qualified
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`immunity gives government officials breathing room to make reasonable but mistaken judgments
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`about open legal questions”46 and protects “all but the plainly incompetent or those who
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`knowingly violate the law.”47 Defendants’ invocation of qualified immunity changes the
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`summary judgment burdens on the individual capacity claims as follows:
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`When a defendant asserts qualified immunity at summary
`judgment, the burden shifts to the plaintiff, who must demonstrate
`on the facts alleged that (1) the defendant’s actions violated his or
`her constitutional or statutory rights, and (2) the right was clearly
`established at the time of the alleged misconduct. “If, and only if,
`the plaintiff meets this two-part test does a defendant then bear the
`traditional burden of the movant for summary judgment—showing
`‘that there are no genuine issues of material fact and that he or she
`is entitled to judgment as a matter of law.’”48
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`1.
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`Constitutional Violation
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`To satisfy the first prong of the qualified immunity test, Plaintiff must show that each
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`Defendant violated his constitutional rights by delaying his Hep-C treatment. As a pretrial
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`detainee, Plaintiff’s rights flowed from the Fourteenth Amendment’s due process clause, which
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`entitled him “to the same degree of protection regarding medical attention as that afforded
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`45 Estate of Beauford v. Mesa County, 35 F.4th 1248, 1273 (10th Cir. 2022) (citing Pahls v. Thomas, 718
`F.3d 1210, 1225–26 (10th Cir. 2013)).
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`46 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
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`47 Malley v. Briggs, 475 U.S. 335, 341, 343 (1986).
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`48 Estate of Beauford, 35 F.4th at 1261–62 (quoting Gutteridge v. Oklahoma, 878 F.3d 1233, 1239 (10th
`Cir. 2018)) (citation omitted).
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`convicted inmates under the Eighth Amendment.”49 The Eighth Amendment requires that the
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`government provide necessary medical care to those it is punishing by incarceration.50 However,
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`prison officials are only liable under the Eighth Amendment when their failure to provide
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`medical care rises to the level of deliberate indifference, which constitutes the “unnecessary and
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`wanton infliction of pain.”51 Plaintiff must therefore satisfy the deliberate indifference test to
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`overcome the Defendants’ invocation of qualified immunity.
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`“‘Deliberate indifference’ involves both an objective and a subjective component.”52
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`“The objective component is met if the deprivation is ‘sufficiently serious.’”53 Typically, a
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`medical need is sufficiently serious if it “has been diagnosed by a physician as mandating
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`treatment” or if it is “so obvious that even a lay person would easily recognize the necessity for a
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`doctor’s attention.”54 “But a plaintiff can also satisfy the objective component based on a ‘delay
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`in medical care . . . if the delay resulted in substantial harm.’”55 Since Plaintiff’s Hep-C has been
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`cured, he can only recover for an Eighth Amendment violation under the heightened delay
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`standard.56 “[T]he ‘substantial harm’ caused by a delay in treatment may be a permanent
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`49Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) (citing Martin v. Bd. of Cnty. Comm’rs, 909
`F.2d 402, 406 (10th Cir. 1990)); see Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019) (citations omitted).
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`50 Estelle v. Gamble, 429 U.S. 97, 103 (1976).
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`51 Id. (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
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`52 Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
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`53 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
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`54 Id. (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)).
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`55 Paugh v. Uintah County, 47 F.4th 1139, 1155 (10th Cir. 2022) (quoting Estate of Beauford v. Mesa
`County, 35 F.4th 1248, 1262 (10th Cir. 2022)).
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`56 Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (“[D]elay in medical care only constitutes an
`Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm.”) (quoting
`Sealock, 218 F.3d at 1210).
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`physical injury, or it may be ‘an intermediate injury, such as the pain experienced while waiting
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`for treatment and analgesics.’”57
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`The subjective prong of the deliberate indifference test focuses on “the mental state of the
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`defendant regarding the risk of harm.”58 “The subjective component is satisfied if the official
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`‘knows of and disregards an excessive risk to inmate health or safety . . . .’”59 “[A]n official’s
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`failure to alleviate a significant risk that he should have perceived but did not, while no cause for
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`commendation, cannot under our cases be condemned as the infliction of punishment.”60
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`a.
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`Jail Defendants
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`Plaintiff must prove that each Jail Defendant was deliberately indifferent to his need for
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`medical treatment to establish a constitutional violation. Plaintiff does not dispute the evidence
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`in the record detailing the multitude of care he received for his stomach pain, but he argues that
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`he received no treatment for Hep-C. Specifically, Plaintiff alleges that Newsome was the
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`gatekeeper for the jail and he could not get a referral to a Hep-C specialist without her approval,
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`and that she told him that the jail would not pay for Hep-C treatment because it was too
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`expensive. Plaintiff asserts that Defendants Lawson, Orebaugh, Welch, and Bascue knew of his
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`need for Hep-C treatment but refused to help. Plaintiff provides evidence in the record to show
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`that, while he has been cured of Hep-C in KDOC, he has stage two fibrosis in his liver, and he
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`blames this fibrosis on the Jail Defendants’ refusal to allow him to access Hep-C specialists.
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`57 Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014) (quoting Kikumura v. Osagie, 461 F.3d
`1269, 1292 (10th Cir. 2006)).
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`58 Estate of Beauford, 35 F.4th at 1267 (citing Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1044 (10th
`Cir. 2022)).
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`59 Mata, 427 F.3d at 751 (quoting Farmer, 511 U.S. at 837).
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`60 Farmer, 511 U.S. at 838.
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`i.
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`Objective Prong
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`Plaintiff must show that the delay in treating his Hep-C caused him substantial harm.
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`Plaintiff argues that his persistent pain during his time at FCJ, as well as his resulting fibrosis,
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`satisfy the substantial harm requirement. Jail Defendants argue that Plaintiff has not shown that
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`his liver damage is substantial or that it was caused by the delay in treatment.
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`“The plaintiff selects ‘what harm to claim.’”61 Plaintiff references two harms throughout
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`his briefings: (1) the pain he suffered while his treatment was delayed, and (2) fibrosis. Since
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`multiple physicians ordered treatment for Plaintiff’s stomach pain, the Court finds that the pain
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`itself was sufficiently serious under the Eighth Amendment. However, there is no evidence that
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`it was caused by the delay in treating Plaintiff’s Hep-C.62 None of the medical professionals
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`who treated Plaintiff’s stomach pain related the pain to his Hep-C. Plaintiff himself initially
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`blamed his blood pressure medications for the pain.63 All of Plaintiff’s medical providers were
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`aware of his Hep-C, as it was included in his medical history and lab reports, but none suggested
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`that the Hep-C could be causing Plaintiff’s pain. Instead, every physician or APRN who treated
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`Plaintiff discounted the Hep-C in their searches for a cause of the pain. And despite their
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`knowledge of the stomach pain, both Britt and Dowdy declared Plaintiff’s Hep-C to be non-
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`symptomatic. Without evidence showing that the stomach pain was caused by the delay in
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`treating Plaintiff’s Hep-C, the stomach pain cannot satisfy the “substantial harm” requirement.
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`Turning to the fibrosis, there is no reliable information before the Court regarding the
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`symptoms of fibrosis, including whether it is irreversible. But even assuming it is a sufficiently
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`61 Paugh v. Uintah County, 47 F.4th 1139, 1155 (10th Cir. 2022) (quoting Mata, 427 F.3d at 753).
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`62 See Murray v. Edwards Cnty. Sheriff’s Dep’t, 248 F. App’x 993, 999 (10th Cir. 2007) (“But while he
`may have presented evidence of a sufficiently serious harm with respect to his depression, he failed to show that it
`was caused by the continuous illumination of his cell.” (citing Mata, 427 F.3d at 753)).
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`63 Docs. 217-26; 217-23.
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`serious harm, Plaintiff offers no evidence that it was caused by the delay in treatment during the
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`time in which Plaintiff was incarcerated in the FCJ. As Defendants point out, Plaintiff has had
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`Hep-C since at least 2003. The Court cannot determine whether any fibrosis he experienced
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`between 2015 and 2019 is attributable to the 12 years Plaintiff had Hep-C before entering FCJ,
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`or to other factors.
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`Since Defendants pointed out the absence of evidence on causation, it was Plaintiff’s
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`responsibility to come forward with specific facts demonstrating that there was a genuine issue
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`for trial.64 Plaintiff argues that causation is clear beca