Jones v. Manguso et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-01758-NYW-TPO
CHAD O’NEAL JONES,
Plaintiff,
v.
ANGIE TURNER,
STEPHANIE ALVARADO,
DANNY SALAZAR,1
JERRY ROARK, Warden,
DONNY BRITTON,
AUTUMN LEWIS, M.D., and
SUSAN WOLLART, RN,
The Bent County Correctional Facility Defendants,
KATHRYN DRAKE,
KRISTYNA ROGERS, and
MARLENE ARMENTA,
The CDOC/Fremont Correctional Facility Defendants,
and
KATHERINE WOLFF,2
Defendants.
______________________________________________________________________________
RECOMMENDATION
______________________________________________________________________________
Timothy P. O’Hara, United States Magistrate Judge.
1 	Plaintiff incorrectly refers to this Defendant as Danny Salazar. His correct name is
Stephen Salazar. See ECF 175-5.
2 	The U.S.M.S. attempted personal service on Defendant Wolff but was unsuccessful. ECF
143 & 144. Ms. Wolff has not appeared in this lawsuit.
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Before the Court is the Motion for Summary Judgment filed by the Bent County
Correctional Facility (BCCF) Defendants Angie Turner, Stephanie Alvarado, Stephen Salazar,
Jerry Roark, Donny Britton, Autumn Lewis, and Susan Wollart. ECF 175. U.S. District Judge Nina
Y. Wang referred the present Motion to this Court. ECF 177. The Court has reviewed the BCCF
Defendant’s Motion [ECF 175] as well as Plaintiff’s Response [ECF 238]. The Court finds that
neither a Reply nor oral argument would materially assist in the Motion’s adjudication. Based on
the arguments and evidence in the Motion’s briefing and this Court’s independent review of the
relevant records filed in this case, this Court recommends that summary judgment be granted in
the BCCF Defendants’ favor.
BACKGROUND
I. 	General Fact Background
Plaintiff is an inmate in the Colorado Department of Corrections (CDOC) who is
representing himself in this litigation. The present lawsuit involves the medical care he received
while in CDOC custody. The present Motion involves the medical care received by Plaintiff
while he was in the BCCF specifically.
Filings in this case show that Plaintiff has received medical treatment for his diabetes
going back to 2018. At that time, Plaintiff was incarcerated at the Arkansas Valley Correctional
Facility (AVCF). ECF 17 at 2. On February 9, 2020, Plaintiff entered the Fremont Correctional
Facility (FCF). ECF 33 at 15. Then on September 16, 2020, Plaintiff entered the BCCF. SUMF
No. 1.
This Court first addressed Plaintiff’s claim of deliberate indifference to medical needs
related to diabetes treatment by Dr. Zachary Englebert at FCF as part of a Recommendation on
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Defendant’s Motion for Summary Judgment [ECF 153].3 ECF 198. District Judge Wang adopted
that Recommendation, entering summary judgment in Dr. Englebert’s favor. ECF 211.
This Court next addressed Plaintiff’s complaints about the inadequacy of the medical care
he received while he was housed in FCF’s Restrictive Housing Unit (RHU) as part of its
Recommendation on the Motion for Summary Judgment [ECF 189] filed by the Defendants
Drake, Rogers, and Armenta (CDOC Defendants). See ECF 232. The period relevant to that
claim was August 14 to September 16 of 2020.
Plaintiff arrived at the BCCF on September 16, 2020. SUMF No. 1. The record contains
treatment notes generated at BCCF during this time frame with the latest one dated December 7,
2020 [ECF 175-1 at 19].4 Although the record is unclear exactly when Plaintiff left the BCCF
facility,5 Plaintiff submitted his proposed SAC from BCCF which this Court received on January
5, 2021 [ECF 31], shortly before this Court accepted and docketed it on January 8, 2021 [ECF
33].
II. 	Plaintiff’s Claims
On April 16, 2024, District Judge Wang issued a Memorandum Opinion and Order
denying Plaintiff’s Motion for Summary Judgment [ECF 104] and granting the CDOC
Defendants’ Refiled Partial Motion to Dismiss the Second Amended Complaint [ECF 108]. ECF
3 	Soon after his transfer to FCF, Dr. Zachary Engelbert treated Plaintiff on two occasions:
February 20 and March 11 of 2020.
4 	The record also contains a medical kite from Plaintiff dated December 21, 2020. ECF
175-1 at 26.
5 	On January 25, 2022, Plaintiff submitted a Change of Address to the Clerk’s Office,
requesting that mail be sent to him at the Sterling Correctional Facility (SCF). ECF 61. In the
filing, Plaintiff suggests that he arrived at SCF on November 5, 2021. Id. at 2.
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122. In her Opinion and Order, District Judge Wang effectively summarized Plaintiff’s claims.
ECF 122 at 6-7. For purposes of consistency, this Court will use the same nomenclature:
• 	Count V against an unnamed individual for transferring Plaintiff to BCCF;6
• 	Count VI against Defendant Turner for allegedly stopping Plaintiff’s “treatment Plan;”
• 	Count VII against Defendant Turner for not providing custom shoes to Plaintiff;7
• 	Count VIII against Defendants Alvarado and Salazar for not obtaining medical care for
Plaintiff when his blood sugar was low;
• 	Count IX against Defendants Roark and Britton for allowing others to avoid providing
him medical care and then for not reporting their conduct to law enforcement; and
• 	Count X against Defendants Lewis and Wollart for stopping Plaintiff’s wound care and
not providing him with food after he received insulin during a COVID lockdown.
Id. All of these claims allege deliberate indifference to Plaintiff’s serious medical needs in
violation of the Eighth Amendment, which he asserts pursuant to 42 U.S.C. § 1983. Id. at 6, 17.
III. 	Defendant’s Motion for Summary Judgment [ECF 175]
In their Motion, the BCCF Defendants separate Plaintiff’s claims in three main groups.
The first group concerns Plaintiff’s allegations against Defendant Turner of delay or denial of
medical care that occurred upon his transfer to BCCF in September of 2020. ECF 175 at 10-12,
15-16 (relating to Counts VI and VII). The second group concerns those claims against
Defendants Alvarado, Salazar, Britton, and Roark related to a low blood sugar incident on
October 23, 2020. Id. at 12-14, 16-17 (Counts VIII and IX). The third group concerns alleged
6 	Plaintiff has never identified any entity or individual as a defendant to this claim.
7 	This claim also references allegations against Dr. Timothy Creany, who was dismissed
without prejudice as part of District Judge Wang’s Memorandum Opinion and Order. ECF 122 at
21.
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inadequate medical care by Defendants Lewis and Wollart on an unknown date during a COVID
lockdown. Id. at 14-15, 18 (Count X).
Defendants first argue that as to each claim “there is a lack of evidence to support the
objective component of Plaintiff’s claim of deliberate indifference.” ECF 175 at 8. Next,
Defendants argue that Plaintiff also cannot provide sufficient evidence to meet the subjective
component of a deliberate indifference claim. Id. at 15. Finally, Defendants point to a lack of
evidence to demonstrate that the conduct of any BCCF Defendants caused Plaintiff’s alleged
injuries. Id. at 18.
On February 23, 2026, Plaintiff filed his Response. ECF 238. He also filed exhibits, all of
which had previously been submitted as part of Defendants’ Motion [ECF 175]. Id. Plaintiff first
addresses Defendants’ Statement of Undisputed Material Facts and then addresses Defendants’
arguments as it relates to each claim. See generally id. Plaintiff provided no additional factual
information or legal support as part of his Response.
STANDARD OF REVIEW
I. 	Fed. R. Civ. P. 56(c) – Motion for Summary Judgment
Fed. R. Civ. P. 56(a) allows for a party to move for summary judgment prior to trial. In
doing so, the moving party must identify “each claim and defense-or the part of each claim or
defense-on which summary judgment is sought.” A court shall grant summary judgment if the
pleadings, depositions, answers to interrogatories, admissions, or affidavits show “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 dispute is genuine if there is sufficient evidence so that a rational trier of
fact could resolve it either way.” Crowe v. ADT Sec. Services, Inc., 649 F.3d 1189, 1194 (10th Cir.
2011) (internal quotations omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
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(10th Cir. 1998)). A fact is material if it might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A motion for summary judgment serves the purpose of testing whether a trial is required.
See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). “Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal
quotations omitted) (quoting Fed. R. Civ. P. 1) (citing Schwarzer, Summary Judgment Under the
Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 467 (1984)).
The moving party bears the initial responsibility of providing the factual basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial
burden either by producing affirmative evidence negating an essential element of the nonmoving
party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its
burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th
Cir. 2002) (citation omitted).
If the movant properly supports a motion for summary judgment, the non-moving party
must “make a sufficient showing on an essential element of her case with respect to which she has
the burden of proof.” Celotex, 477 U.S. at 323. That is, the opposing party must assert a set of facts
that, if found to be true, would enable it to prevail on the claim. The opposing party may not simply
“rest upon the mere allegations or denials of his pleadings” to meet that burden. Anderson, 477
U.S. at 248 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288
(1968)). Instead, the opposing party “must set forth specific facts showing that there is a genuine
issue for trial.” Id. at 251). “[T]he mere existence of some alleged factual dispute between the
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parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
These specific facts may be shown “by any of the kinds of evidentiary materials listed in Rule
56(c), except the mere pleadings themselves.” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008
(10th Cir. 1998) (quoting Celotex, 477 U.S. at 324).
The content or the substance of the evidence submitted at the summary judgment stage
must be admissible. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (citing
Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1082 n.5 (10th Cir. 1999)). Supporting and
opposing affidavits “must be made on personal knowledge,” Fed. R. Civ. P. 56(c)(3), and an
affidavit is inadmissible “if the witness could not have actually perceived or observed that which
he testifies to.” Argo v. Blue Cross Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir.
2006) (internal quotations omitted) (quoting United States v. Sinclair, 109 F.3d 1527, 1536 (10th
Cir. 1997)).
If the opposing party denies a factual assertion made by the moving party, the opposing
party must provide an explanation for the denial with an accompanying specific reference to the
evidentiary record. See e.g., American Auto. Ins. Co. v. Marlow, 666 F. Supp. 2d 1209, 1212-13
(D. Colo. 2009) (deeming defendants’ failure to admit or deny facts as admitted). If the parties
“tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version.” Pierson v. Bassett, 534 F.
App’x 768, 771 (10th Cir. 2013) (unpublished) (quoting Thomson v. Salt Lake Cnty., 584 F.3d
1304, 1312 (10th Cir. 2009)). And if there is a genuine dispute as to the material facts, “[a]t the
summary judgment stage, [those] facts must be viewed in the light most favorable to the
nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).
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While this Court construes a pro se litigant’s filings liberally, he “still must follow the
established procedures governing Rule 56(f) motions.” Abdulhaseeb v. Calbone, 600 F.3d 1301,
1310 (10th Cir. 2010) (citing Haines v. Kerner, 404 U.S. 519, 520-21; DiCesare v. Stuart, 12 F.3d
973, 979 (10th Cir. 1993)).
STATEMENT OF UNDISPUTED MATERIAL FACTS8
This Court lists the BCCF Defendants’ Statements of Undisputed Material Facts (SUMFs)
below, see ECF 175 at 2-6, and includes any disputes noted by Plaintiff. The Court also cites to
the location in the record where the fact may be found.
1. 	Plaintiff transferred to BCCF on September 16, 2020. ECF 33 at 32; ECF 175-2 at
2; ECF 175-1 at 184-288.
2. 	Upon his entry into BCCF, Plaintiff had an intake examination in which staff noted
that he had a wound or sore under his right great toe. ECF 175-1 at 188. At his deposition Plaintiff
described it as a pressure ulcer right below his toes on the ball of his foot. ECF 175-2 at 2:24-3:6.
He reported having the condition for the prior 29 months. ECF 175-1 at 246.
3. 	The next day, on September 17, 2020, Plaintiff submitted a kite requesting to speak
with Health Services Administrator Turner “about the treatment plan” for the foot ulcer. ECF 175-
1 at 246.
4. 	On September 19, 2020, the medical staff examined the wound to the ball of
Plaintiff’s right toe. The medical care provider measured the wound to be 0.5 cm x 0.5 cm x 0.5
cm in size with no bleeding or drainage. ECF 175-1 at 244. The wound was cleaned, treated, and
wrapped. Daily wound care was scheduled. Id.; ECF 175-2 at 4.
8 	Pursuant to Fed. R. Civ. P. 56(e)(2), facts or objections to facts that are not properly
supported may be considered by the court as undisputed for purposes of the motion.
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5. 	On September 22, 2020, Plaintiff met with Defendant Turner to discuss his
treatment plan. This fact is disputed. ECF 238 at 4 (Plaintiff asserts that Defendant Turner “stated
she was stopping or changing his wound care.”). The Court notes that Plaintiff explained at his
deposition what he meant by alleging that Defendant Turner stopped his care: she changed the type
of bandage he would receive. See ECF 238-2 at 4:19-5:20. Plaintiff did not mean that she (or
others) actually stopped treating Plaintiff’s condition.
6. 	The job duties of a Health Services Administrator (HAS) are not described in terms
of providing medical care directly to inmates. Rather an HSA performs administrative tasks related
to the provision of medical care. An HSA therefore would not ordinarily provide direct medical
care to an inmate, and she was not a treating source for Plaintiff. See ECF 175-2 at 5-7; ECF 175-
3. This fact is disputed. See ECF 238 at 4; ECF 238-3 at 5. Plaintiff points to the job description
of an HSA as evidence that HSAs can “diagnose and treat acute and chronic healthcare needs.”
ECF 238-3 at 5.
7. 	Following the September 22, 2020 meeting with Defendant Turner, Plaintiff
received wound care on his foot, including regular cleanings and debridement. See ECF 175-1 at
218-41. Although Plaintiff argues this care “is againist [sic] state and Federal law,” ECF 238 at 5,
he does not dispute this fact.
8. 	Plaintiff had an appointment with his treating doctor, Dr. Creany, on October 6,
2020, at which his diabetic foot condition was assessed and a treatment plan was set, including a
plan for him to receive an orthopedic shoe. See ECF 175-1 at 138-50. Although Plaintiff argues
this care “is againist [sic] state and Federal law,” ECF 238 at 5, he does not dispute this treatment
plan, although Plaintiff does not regard Dr. Creany as a treating source because Dr. Creany treated
him remotely through telehealth appointments. See ECF 238 at 5.
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9. 	Mr. Jones underwent a medical review prior to entering the RHU on October 23,
2020. Plaintiff requested flexibility with his insulin dose. See ECF 175-1 at 91.
10. 	On October 23, 2020, Plaintiff communicated to jail staff, specifically Defendant
Alvarado, that his blood sugar was low. Defendant Alvarado reported the information to the
medical department and visited Plaintiff’s cell. See ECF175-4; ECF 175-1 at 80-82.
11. 	Plaintiff alleges that he received care in Defendant Salazar’s office and that
Defendant Salazar did not ensure that he received the correct insulin. ECF 33 at 33-34.
12. 	Mr. Jones alleges that he reported inadequacies of care to Defendants Roark and
Britton and they did not take appropriate action. ECF 33 at 34.
13. 	On October 28, 2020, Mr. Jones received custom shoes for his diabetic ulcers. ECF
175-1 at 71; ECF 175-2 at 32:9-20.
14. 	Defendant Roark was not a medical professional and would not ordinarily provide
medical care to Plaintiff. ECF 175-2 at 42:12-23.
15. 	Defendant Alvarado was not a medical professional, and she did not provide
Plaintiff with medical care. ECF 175-2 at 10:1-6.
16. 	Defendant Turner did not ordinarily provide medical care to Mr. Jones or other
inmates. ECF 175-2 at 10:1-6.
17. 	Defendant Salazar was not a medical professional, and he did not provide Plaintiff
or other inmates with medical care. ECF 175-2 at 38:22-24.
18. 	Defendant Britton was not a medical professional and would not ordinarily provide
Plaintiff with medical care. ECF 175-2 at 42:12-23.
19. 	Plaintiff had a history of refusing insulin as a form of protest. ECF 175-1 (various);
ECF 175-2 at 45:10-46:08. Defendant admitted that he refused insulin “one time as a form of
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protest.” ECF 238 at 7. During his deposition, Plaintiff suggested that such refusals may have
occurred on more than one occasion. ECF 238-2 at 7:25-8:4.
20. Autumn Lewis, M.D., was a doctor who treated Plaintiff during the relevant time
period. ECF 175-1 at 17-18.
21. 	Susan Wollart was a Registered Nurse who treated Plaintiff during the relevant time
period. ECF 175-2 at 34:4-11, 35:11-17.
22. 	Plaintiff alleges that Defendants Lewis and Wollart provided inadequate treatment
of his pressure ulcers. ECF 33 at 35.
23. 	Medical records during the relevant period demonstrate that Plaintiff received
regular care for his pressure ulcers, including regular check-ups and observations of his foot, while
at BCCF. ECF 175-1 at 19-282. This fact is disputed. ECF 238 at 7-8.
LEGAL STANDARD
I. 	Deliberate Indifference
“A prison official’s deliberate indifference to an inmate’s serious medical needs is a
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.” Mata v.
Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“Deliberate indifference involves both an objective and subjective component.” Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (omitting internal quotations) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994)).
The objective component is satisfied “if the deprivation is ‘sufficiently serious.’” Sealock,
218 F.3d at 1209 (citing Farmer, 511 U.S. at 834). “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.’” Sealock, 218 F.3d
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at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). The inquiry is not limited
to the seriousness of the displayed symptoms but it could also include the seriousness of the alleged
harm.9 Mata, 427 F.3d at 753.
On the subjective side, a defendant “must have a ‘sufficiently culpable state of mind.’”
Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). The plaintiff must
demonstrate that the defendant “knew he faced a substantial risk of harm and disregarded the risk,
by failing to take reasonable measures to abate it.” Hunt, 199 F.3d at 1224 (quoting Farmer, 511
U.S. at 847); see also Spradley v. LeFlore Cty. Det. Ctr., 764 F. App’x 692, 699 (10th Cir. 2019)
(same) (quoting Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009)). The cause of action
requires more than negligence or ordinary lack of due care. Lieberenz v. Bd. of Cty. Comm’rs, No.
21-cv-00628-NYW-NRN, 2023 WL 1767260, at *20 (D. Colo. Feb. 3, 2023) (quoting Whitley v.
Albers, 475 U.S. 312, 319 (1986)).
Additionally, plaintiffs must demonstrate causation. Specifically, “a defendant may not be
held liable under § 1983 unless he or she subjected a citizen to the deprivation or caused a citizen
to be subjected to the deprivation.” McDonald v. Wise, 769 F.3d 1202, 1215 (10th Cir. 2014)
(quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998)).
ANALYSIS
I. 	Defendant Turner—September 2020 (Counts VI and VII)
Defendant moves for summary judgment as to Defendant Turner in Claims VI and VII, for
several reasons. First, Defendants argue that there is no evidence to support that Defendant Turner
9 	The Mata court provided the example of when delay by a prison official causes damage
to the prisoner’s heart, the objective prong would focus on whether the damage to the heart is
sufficiently serious, not whether the symptoms on display to the prison employee were
sufficiently serious. 427 F.3d at 753.
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“stopped” Plaintiff’s diabetic wound care or delayed his receipt of orthotic shoes as the
uncontroverted evidence demonstrates that Plaintiff continued to receive wound care treatment
after his initial meeting with Defendant Turner and received orthotic shoes. ECF 175 at 10-11;
SUMF No. 13. Defendant also notes that Plaintiff fails to demonstrate a “sufficiently serious
condition that would support the objective element of the deliberate indifferent [sic] analysis for a
delay in treatment.” Id. at 11. Finally, Defendant argues that there is no evidence that Defendant
Turner “disregarded a risk to Mr. Jones.” Id. at 15.
In his Response, Plaintiff alleges that his medical care was delayed between September 16,
2020 (his arrival date) and September 18, 2020. ECF 238 at 8. Then, he generally alleges that such
delays occurred “200 time [sic] or more in a year with daily wound care.” Id. And he clarifies what
he meant by a stoppage of care: Defendant Turner used “inadequate bandages,” ones that Plaintiff
had used previously and that were not effective. Id.
Plaintiff’s claims against Defendant Turner fail for several reasons. First, even viewing the
facts in a light most favorable to Plaintiff, he provides insufficient evidence that he received a
delay or deficit in care at all during this period, let alone one that would constitute deliberate
indifference. He arrived at BCCF on September 16, 2020. SUMF No. 1. He was seen on that day
by medical staff as part of the facility’s intake procedure. ECF 175-1 at 188. No complaints of pain
or distress were documented at that time. Id. On September 17, 2020, he requested to speak to
Defendant Turner about his treatment plan. Id. at 183. On September 19, 2020, he met with medical
staff about his diabetic ulcer. Id. at 180. Plaintiff then met with medical staff again on September
20 and September 21, 2020, each time to monitor the diabetic ulcer on Plaintiff’s foot. Id. at 176,
180. During these encounters, medical personnel noted no pain, bleeding, or drainage from the
ulcer.
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On September 22, 2020, Plaintiff met with Defendant Turner as he had requested. She
advised him that he will be seeing “the provider” and can review the treatment plan at that time.
ECF 175-1 at 175. Plaintiff’s daily, or near daily, wound care continued. See id. at 173 (9/22/20),
170 (9/23/20), 167 (9/24/20), 164 (9/26/20), 162 (9/27/20), 159 (9/28/20), 156 (10/1/20), 151
(10/5/20). Then on October 6, 2020, Plaintiff met with his provider Dr. Timothy Creany.10 SUMF
No. 8.
Plaintiff presents no evidence of any cessation of wound care treatment (or any other form
of medical care) during the period following his arrival at BCCF. To the contrary, wound care
proceeded on a daily or near daily basis. At his deposition, Plaintiff struggled to identify a way
that Defendant Turner hindered his medical care. The only example he identified was that she used
a different type of bandage for his wound care dressing, which cannot constitute a cessation in care
considering all of the other objective evidence to the contrary. ECF 175-2 at 28:19-30:17.
Plaintiff’s other general allegations, like that he went 220 days without wound care,11 ECF 238 at
9, or that Defendant Turner caused an unreasonable delay in his receiving orthopedic shoes,12 are
unsupported by any evidence.
Next, Plaintiff fails to demonstrate that his condition was one that was “sufficiently
serious” to support the objective element of a deliberate indifference claim. Instead, during this
time, the notes reflect that Plaintiff’s condition was minor and under control. For example, the
10 	Plaintiff notes that the meeting was by telehealth. ECF 238 at 5.
11 	Plaintiff provides no factual support for the claim that he failed to receive wound care for
220 days.
12 	On September 22, 2020, Plaintiff first requested new shoes from Defendant Turner. ECF
175-1 at 175. Then, on October 6, 2020, Dr. Creany informed Plaintiff of a plan to arrange for
Plaintiff to receive orthopedic shoes. SUMF No. 8; see also ECF 238 at 5. Then on October 28,
2020, approximately one month after first requesting them, Plaintiff received “custom fit” shoes.
ECF 175-1 at 71.
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author of the note from September 19, 2020, indicates the size of Plaintiff’s ulcer was 0.5 cm x 0.5
cm x 0.5 cm. Id. There was “no bleeding or drainage.” Any pain or discomfort suffered by Plaintiff
during this time was not recorded in any medical note. Even when viewing the facts in a light most
favorable to him, Plaintiff’s injury could be characterized as “trivial.” Al-Turki v. Robinson, 762
F.3d 1188, 1193 (10th Cir. 2014). Plaintiff’s unsupported statement that his failure to receive daily
care led to an infection that then led to “P[ulmonary] E[mbolism]s on my lungs and from the
inflammation I got cancer and lost half of a kidney,” ECF 238 at 9, is without any evidentiary
support.
Third, Plaintiff fails to demonstrate sufficient evidence as it relates to Defendant Turner on
the subjective side as well. Plaintiff cites no evidence that Defendant Turner knew of or
disregarded any excessive risk to Plaintiff’s safety. Defendant Turner’s role in Plaintiff’s care was
minimal: she saw him on one occasion. Plaintiff agreed that his medical care was provided by
other providers at this time, not Defendant Turner. ECF 175-2 at 6:5-17. And any allegation that
Plaintiff was only given a Band-Aid during this time, by Defendant Turner or anyone else, is not
supported by the evidence. See e.g., ECF 175-1 at 167 (Plaintiff’s wound was “covered with non-
adherent Telfa13 and roll gauze”). Plaintiff’s allegations are insufficient to demonstrate that
Defendant Turner was aware of an excess risk to Plaintiff and disregarded it.
To the extent there may have been days when wound care was not provided, Plaintiff
presents no evidence that those shortcomings actually posed a substantial risk of serious medical
harm for which Defendant Turner (or any other named Defendant) was subjectively aware but
deliberately disregarded. Plaintiff’s situation simply does not rise to the level of wound care
13 	Telfa is a brand of non-adherent pad used in wound care. See TELFA Dressings | TELFA
Pad, TELFA Bandage, TELFA Island, TELFA Non-Adherent,
[https://www.vitalitymedical.com/telfa.html] (last visited February 23, 2026).
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concern or complications at issue in Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991) or Lucido
v. Correctional Med. Servs., Inc., No. 04-CV-132-J, 2006 WL 8432350 (D. Wyo. May 19, 2006).
Finally, his claim that Defendant Turner delayed the receipt of his shoes likewise has no
evidentiary support. The first reference to new shoes is during the meeting with Defendant Turner
on September 22, 2020. ECF 175-1 at 175. Plaintiff received custom fit shoes on October 28, 2020.
SUMF No. 13.
Plaintiff’s conclusory allegations fail to meet either the objective or subjective requirement
as it relates to the minimal role played by Defendant Turner in Plaintiff’s treatment following his
arrival at the BCCF. Plaintiff’s complaints amount to a personal dispute over what form of medical
care was appropriate. More is needed to demonstrate deliberate indifference to a medical need than
an inmate’s personal disagreement with the form of treatment. Jones v. Stancil, No. 24-cv-00750-
NYW-TPO, 2024 WL 5010194, at *5 (D. Colo. Dec. 6, 2024). The evidentiary record, even when
viewed in a light most favorable to Plaintiff fails to show even negligence, let alone deliberate
indifference by Defendant Turner to Plaintiff’s medical needs. See Farmer v. Brennan, 511 U.S.
825, 835 (1994) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986) (Eighth Amendment liability
for deliberate indifference requires “more than ordinary lack of due care for prisoner’s interests or
safety.”)) This Court therefore recommends that summary judgment be entered in Defendant
Turner’s favor as to Counts VI and VII.
II. 	The October 23, 2020 Incident
In this group of claims, Plaintiff alleges that two correctional officers did not respond to a
low blood sugar incident in a way that Plaintiff believes they should have. As such, Plaintiff bases
this claim on a “gatekeeper” theory. See Cordova v. Kautz, No. 23-cv-00081-PAB-KAS, 2024 WL
4008709, at *7 (D. Colo. Aug. 12, 2024) (discussing the gatekeeper theory in detail).
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This incident began when Plaintiff called the control center and spoke with Defendant
Alvarado. SUMF No. 10. Plaintiff told her that his blood sugar was low and asked for medical
staff to be called. ECF 238-3. “Correctional Counselor Stephanie Alvarado received the
communication and reported this information to the medical department.” SUMF No. 10
(emphasis added); see also ECF 238 at 5 (Plaintiff does not dispute that Defendant Alvarado
“reported this information to medical department.”). Defendant Alvarado walked by Plaintiff’s
cell 30 minutes later. ECF 238-3 at 9.
Defendant argues that the factual record fails to support that Defendants Alvarado denied
or delayed Plaintiff from receiving medical treatment. ECF 175 at 12. And if there was a delay, it
did not result in substantial harm. Id. at 13.
A. 	Defendant Alvarado
Plaintiff’s own allegations demonstrate that after he called for help, Defendant Alvarado
called for medical help. ECF 238-3. About 30 minutes later, Defendant Alvarado visited his cell.
Id. Plaintiff bases his claim against Defendant Alvarado on her failure to “call the First
Responder.” ECF 33 at 33. Plaintiff’s claim fails for several reasons.
First, he cites no case law that Defendant’s calling for medical assistance, rather than a
First Responder, supports a claim of deliberate indifference to medical need. Indeed, Plaintiff does
not account for how Defendant Alvarado did take responsive action to his call for medical help
and then responded within 30 minutes.
Second, Plaintiff does not establish either the objective or subjective prong as to Defendant
Alvarado either, i.e., how he was experiencing an objectively serious medical need on the basis of
low blood sugar and/or how Defendant Alvarado subjectively perceived a medical emergency but
failed to take appropriate responsive action. Plaintiff’s statement to Defendant Alvarado was “my
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sugars are low,” a far cry from a statement demonstrating a medical emergency. There is no
evidence to suggest Plaintiff even asked Defendant Alvarado to call the First Responder; he simply
asked Defendant to call medical, which she did ECF 238-3 at 9. This Court recommends that
summary judgment be entered in Defendant Alvarado’s favor.
B. 	Defendant Salazar and Alvarado (Count VIII)
As noted above, on October 23, 2020, the overwhelming evidence in the record
demonstrates that medical staff and officers took action in response to Plaintiff’s request for
medical help. ECF 238-3. After approximately 30 minutes, Defendant Alvarado took Plaintiff to
Defendant Salazar’s office where he received medical care from a nurse. Id. Plaintiff originally
alleged that the nurse gave him an incorrect insulin dosage, ECF 33 at 33, however Plaintiff failed
to allege that in his Response [ECF 238] or in the Incident Statement about the event [ECF 238-
3]. Plaintiff alleges that sometime later he suffered a fall incident where he hit the floor while he
was in the RHU. ECF 238 at 11; 238-3 at 9.
Plaintiff’s allegations against Defendants Alvarado and Salazar here are not clear. After he
received medical care, Defendant Salazar and Defendant Alvarado returned Plaintiff to his Pod,
and then allegedly conspired to explain how they broke protocol. ECF 238-3. The conspiracy
consisted of Defendants Alvarado and Salazar calling first responders to take Plaintiff to the
restrictive housing unit about 35 or 40 minutes after leaving Defendant Salazar’s office. Id.
Plaintiff’s claims against Defendants Alvarado and Salazar fail to even resemble a valid
claim for deliberate indifference. First, Plaintiff fails to provide any evidence that Defendants
Alvarado and Salazar, who are not medical care providers, delayed or denied medical treatment to
Plaintiff. In fact, Plaintiff seems to fault Defendants Alvarado and Salzar for calling First
Responders. ECF 238 at 10 (“30 minutes later First Responder gets called not for Health.”). And
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should Plaintiff’s claim be construed as faulting Defendants Alvarado and Salazar for not calling
a First Responder sooner, Plaintiff does not demonstrate why these Defendants should have called
for a First Responder when a nurse already was attending to Plaintiff.
Plaintiff’s allegations fail to demonstrate either the subjective or objective component of a
deliberate indifference claim. Plaintiff’s own allegation shows that Defendants Alvarado and
Salazar took action in response to Plaintiff’s request for medical help. Construing Plaintiff’s
allegations broadly, perhaps these Defendant did not comply with some sort of administrative rule
or Plaintiff’s specific preference. However, this by no means establishes liability against either
Defendant under § 1983. The dispositive point here is that Defendants Alvarado and Salazar did
respond and there is insufficient evidence of any delay.
Furthermore, Plaintiff does not demonstrate how these Defendants subjectively knew or
should have inferred “a substantial risk of serious harm” that should have prompted them to take
some different action. For example, the defendant in Freeman v. Horst could have perceived that
the plaintiff suffered some minor injuries, but the situation did not suggest the need for immediate
medical attention. No. 22-cv-02277-NYW-STV, 2023 WL 8654314, at *6 (D. Colo. Oct. 5, 2023).
Here, Plaintiff does not demonstrate a situation which indicated the need for a response greater
than what was made. To the extent Plaintiff could point to any delay in these Defendants’ response
that is of significant concern, he identifies no substantial harm as a direct result. For a delay-based
deliberate-indifference claim to be actionable, Plaintiff must “show that the delay resulted in
substantial harm.” Kassal v. Colo. Dep’t of Corrs., No. 24-cv-00369-SBP, 2025 WL 2799839, at
* 5 (D. Colo. Sept. 30, 2025) (internal citation omitted). See also Merchant v. Goodrich, No. 22-
cv-01682-CNS-NRN, 2025 WL 297709, at *5 (D. Colo. Jan. 7, 2025) (explaining that for a delay
in medical treatment to violate the Eighth Amendment, the delay must have caused substantial
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harm) (citing Sealock, 218 F.3d at 1210 and Garrett v. Stratman, 254 F.3d 946, 949-50 (10th Cir.
2001)). The substantial harm requirement “may be satisfied by lifelong handicap, permanent loss,
or considerable pain.” Garrett, 254 F.3d at 950.
This Court recommends that summary judgment be entered in favor of Defendants
Alvarado and Salazar.
C. 	The Investigation into the Incident (Count IX)
Plaintiff alleges further that Warden Roark and Investigator Britton took no remedial action
after learning that he had been left in his cell with low blood sugar, an action which Plaintiff
characterizes as a Felony. ECF 33 at 34.
Plaintiff alleges conduct by these two Defendants that occurred well after the medical
incident. Thus, nothing about the actions that these investigatory actors took relate to the provision
of medical care or bear any causal relationship with any alleged shortcoming in how the others
handled the low blood sugar incident. Plaintiff must show an affirmative link between the
constitutional deprivation (here, an alleged deliberate indifference to a medical need) and a
defendant’s personal involvement. Sherman v. Klenke, 653 F. App’x 580, 591 (10th Cir. 2016).
No such link or causal relationship exists here. Moreover, Plaintiff proffers no evidence generated
during the course of the investigation that could show how those who did react to his low blood
sugar incident could be regarded as deliberately indifferent in the first place.
This Court recommends that summary judgment be entered in favor of Defendants Roark
and Britton.
III. 	COVID Lockdown (Count X)
Count X concerns how a COVID lockdown incident affected the daily wound care regimen
and the timing of meal deliveries. Defendants seek summary judgment on this claim, arguing that
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Plaintiff fails to demonstrate that they obstructed or delayed any treatment and noting that Plaintiff
provides no evidence that these two individuals ever provided medical care to Plaintiff. ECF 175
at 14.
In his Response, Plaintiff complains that Defendant Wollart failed to cut off a cast,
allowing water to enter into the area and cause infection. ECF 238 at 15. Plaintiff discussed this
matter at his deposition. ECF 175-2 at 34-35. Defendant Wollart was a nurse and interim HSA.
Plaintiff complains about a day-and-half delay before Defendant Wollart cut off his cast after the
cast broke. Plaintiff leaves unclear the context and circumstances of this alleged situation. Even
accepting the allegation as true, it does not rise above the level of a complaint about the quality of
the medical care. Jones, 2024 WL 5010194, at *5. Nor does Plaintiff submit evidence to
corroborate his allegation that the delay worsened his health.
Regarding Defendant Dr. Lewis, Plaintiff complains in his Response that she came at odd
hours to deliver wound care and asked Plaintiff to sign a paper confirming that treatment occurred.
ECF 238 at 15. Treatment records identify Dr. Lewis as a treating source during the relevant
period. ECF 175-1 at 17.
Plaintiff alleges in his SAC that he complained to Nurse Wollart and Dr. Lewis about
delayed or missed wound care sessions during the COVID lockdown. Plaintiff concedes that they
both discussed the situation with him. ECF 33 at 35. On November 16, 2020, Plaintiff complained
about wound care being scheduled at night (although acknowledging that medical staff was
“overwhelmed” at that time with a COVID situation). ECF 175-1 at 05569. On November 19,
2020, Plaintiff complained about less frequent and nighttime wound care appointments resulting
from a COVID lockdown. ECF 175-1 at 40. In response to his medical kite of November 19, 2020,
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a medical provider explained that “wound care [was] offered & you refused,” and also denied his
request to increase his insulin dosage, explaining that his condition is “stable on current dose.” Id.
Plaintiff’s allegation that he did not receive meals until hours after receiving insulin is
wholly conclusory. He proffers no evidence to corroborate the allegation and fails to demonstrate
who of the named BCCF Defendants are responsible for meal delivery timing.
Finally, Plaintiff neither alleges how Dr. Lewis nor Nurse Wollart acted with deliberate
indifference to his diabetes treatment. Nor does he allege how the interruptions caused by the
COVID lockdown affected wound care or meal delivery and how that was substantial enough to
risk serious medical harm. This Court therefore recommends that summary judgment be entered
on Count X in Defendants’ favor and that summary judgment be entered in favor of Defendants
Dr. Lewis and Nurse Wollart.
CONCLUSION
Plaintiff provides no basis by which a reasonable jury could find that any of the named
BCCF Defendants were deliberately indifferent to a serious medical need. Plaintiff describes no
emergency or acute medical situation about which any Defendant subjectively knew but failed to
take action despite that awareness. The only such incident that occurred was one bout of low blood
sugar, but action was taken in response to it. No injury supported by evidence that can be linked
to the conduct of these Defendants has been suggested.
Underlying his allegations is the clear and substantial evidence in the record that medical
care was being provided consistently during the relevant period. There may have been times when
the medical care provided was less than optimal or deviated from the treatment plan, but the
evidence suggests any deficiency was minor and failed to cause serious harm to Plaintiff. There
may be aspects about the medical care that was provided with which Plaintiff personally disagrees,
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but that is far short of what he needs to state an actionable claim of deliberate indifference. Wright
v. Allred, No. 16-cv-00675-CMA-STV, 2017 WL 6016397 (D. Colo. Aug. 3, 2017) (dismissing a
deliberate indifference claim where the plaintiff was non-compliant with the wound care treatment
plan that the doctor had prescribed and citing Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811
(10th Cir. 1999) for the general rule that “a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation”). Medical treatment that
may be “subpar or different from what the inmate wants” does not support a deliberate indifference
claim. Kassal, 2025 WL 2799839 at *6 (citing Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir.
2018)). Indeed, what the treatment notes show is that medical staff at BCCF tried to provide him
with medical care throughout the relevant period. Plaintiff personally may not have liked the
treatment provided, or wished it were different, but that does not mean he has suffered a
deprivation that rises to the level of an Eighth Amendment violation.
Accordingly, the Court respectfully recommends14 that the BCCF Defendants’ Motion for
Summary Judgment [ECF 175] be granted in full as to all remaining counts and claims.
14 	The Parties have fourteen days from the date of this Recommendation to file with the
Clerk of Court written objections to findings of fact, legal conclusions, or recommendations that
this Court proposes here. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re
Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district
court on notice of the basis for the objection will not preserve the objection for de novo review.
“[A] party's objections to the magistrate judge's report and recommendation must be both timely
and specific to preserve an issue for de novo review by the district court or for appellate review.”
United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the district judge of the magistrate judge's proposed
findings of fact, legal conclusions, and recommendations and will result in a waiver of the right
to appeal from a judgment of the district court based on the proposed findings of fact, legal
conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573,
579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's
recommendation de novo despite lack of an objection does not preclude application of “firm
waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904
(10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate
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This Court recommends further that all claims raised in this lawsuit against Defendant
Katherine Wolff be dismissed without prejudice. At the Status Conference held January 26, 2026,
Plaintiff “advise[d] the Court of his intent to terminate Ms. Wolff as a defendant in this civil
action.” ECF 224 at 2. Plaintiff did not confirm this in his Response, but neither does he explain
what his claim against this Defendant is. For the same reason, this Court recommends that Count
V be dismissed for Plaintiff’s failure to name who was responsible for his transfer to BCCF or to
demonstrate how he is entitled to relief on such a claim.
Because this Recommendation addresses the last of Plaintiff’s remaining claims in this
civil action, this Court recommends that this case be closed.
This Court directs the Clerk of Court to mail a copy of this Recommendation to
Plaintiff and enter certification of that mailing onto the case docket sheet.
DATED at Denver, Colorado, this 25th day of February, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352
(10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling
by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.
2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Finally, all Parties must consult and comply with the District Judge's practice standards for any
specific requirements concerning the filing and briefing of objections.
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