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,
JERRY ROARK,
DONNY BRITTON,
AUTUMN LEWIS, and
SUSAN WOLLART,
The Bent County Correctional Facility Defendants,
KATHRYN DRAKE,
KRISTYNA ROGERS, and
MARLENE ARMENTA,
The CDOC/Fremont Correctional Facility Defendants,
and
KATHERINE WOLFF,1
Defendants.
______________________________________________________________________________
RECOMMENDATION
______________________________________________________________________________
Timothy P. O’Hara, United States Magistrate Judge.
Before the Court is the Motion for Summary Judgment filed by the “CDOC Defendants”
Kathryn Drake, Kristyna Rogers, and Marlene Armenta. ECF 189. U.S. District Judge Nina Y.
1 	The U.S.M.S. attempted personal service on Defendant Wolff but was unsuccessful ECF
143 & 144. Neither Ms. Wolff, nor counsel on her behalf, has appeared in this lawsuit.
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Wang referred the present Motion to this Court. ECF 190. The Motion is now fully briefed.2 The
Court finds that oral argument will not materially assist in the Motion’s adjudication. Based on the
arguments raised 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 CDOC
Defendants’ favor.
BACKGROUND
I. 	Factual Background
Plaintiff is an inmate in the Colorado Department of Corrections (CDOC) who is
representing himself in this litigation. ECF 33 at 3. The present lawsuit involves the medical care
received by Plaintiff while in the CDOC. The present Motion involves the medical care he
received while in the Restricted Housing Unit (RHU) at Fremont Correctional Facility (FCF).
Plaintiff entered FCF on February 9, 2020, ECF 33 at 15, and departed on September 16,
2020, id. at 32. Upon his arrival at FCF, he immediately began receiving medical care and
informed the nursing staff about the ulcer on his foot. ECF 33 at p. 15. Then Dr. Zachary
Engelbert treated Plaintiff on two occasions: February 20 and March 11 of 2020. ECF 198 at 9
(citing ECF 153 at 3, 6). During the initial visit, Dr. Englebert addressed Plaintiff’s medical
issues, including the ulcer in his foot. Id. (citing ECF 153 at 3-5). During the second visit, Dr.
Englebert again addressed Plaintiff’s foot ulcer and the pain associated with it. Id. (citing ECF
153 at 6-7). This Court recommended that summary judgment be entered in Dr. Englebert’s
2 	The Motion’s briefing consists of the CDOC Officals’ Rule 56 Motion for Summary
Judgment [ECF 189], Plaintiff’s answer [sic] to Denfendant’s [sic] Summary Judgment [ECF
203], and the CDOC Officials’ Reply in Support of Their Rule 56 Motion for Summary
Judgment [ECF 21]. This Court also includes for consideration Plaintiff’s In Responds [sic] to
the CDOC Officials’ reply in Support of their Rule 56 Motion for Summary Judgment [ECF
217].
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favor as it related to Plaintiff’s claim of deliberate indifference claim. ECF 98 at 15-16. As noted
there, “the record shows no genuine dispute over whether Plaintiff suffered a denial, delay, or
intentional adverse interference with his diabetes care.” Id. at 15. District Judge Wang adopted
that Recommendation. ECF 211.
In the present Motion, Plaintiff complains about the adequacy of his wound and diabetes
care between August 14, 2020, and September 16, 2020, also while Plaintiff was housed in
FCF’s Restrictive Housing Unit (RHU). ECF 33 at 31. The three named CDOC Defendants who
are subject of this claim are correctional officers who were assigned to the FCF RHU. Id. at 31.
II. 	Claim
At issue here is Count IV,3 which District Judge Wang summarized as alleging that
Defendants Rogers, Armenta, and Drake “fail[ed] to take Mr. Jones to the medical department for
daily wound care and fail[ed] to feed him within 30 minutes after he was provided insulin.” ECF
122 at 7. It is a claim of 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; see also ECF
33 at 4.
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 defenseor 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
3 	The substance of this claim is found in Plaintiff’s “Supplemental Complaint.” ECF 33 at
31.
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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
(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, 477 U.S. at 323. “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
may not simply “rest upon the mere allegations or denials of his pleadings” to meet that burden.
Anderson, 477 U.S. at 248 (quoting National Bank of Arizona v. Cities Service Co., 391 U.S. 253
(1968)). Instead, the opposing party “must set forth specific facts showing that there is a genuine
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issue for trial. Anderson, 477 U.S. at 2448 (quoting National Bank of Arizona, 391 U.S. 253
(1968)). “[T]he mere existence of some alleged factual dispute between the 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)). 	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)).
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)). 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). “In considering the evidence in the record,
the Court cannot and does not weigh the evidence or determine the credibility of witnesses.”
McAlister v. LGI Homes Corporate, LLC, No. 23-cv-03088-NYW-TPO, 2025 WL 843749, at *2
(D. Colo. Mar. 18, 2025) (citing Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008)). 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,
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380 (2007) (citing Fed. R. Civ. P. 56(c)). 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)).
While this Court construes a pro se litigant’s filings liberally, the litigant “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 (1972); DiCesare v.
Stuart, 12 F.3d 973, 979 (10th Cir. 1993)). This Court has no obligation to scour the record “to
find evidence supporting [a] litigant’s summary judgment interests.” Hampton v. Barclays Bank
Delaware, 478 F. Supp. 3d 1113, 1121 (D. Kan. Aug. 13, 2020) (citing Cross v. The Home Depot,
390 F.3d 1283, 1290 (10th Cir. 2004)).
STATEMENT OF UNDISPUTED MATERIAL FACTS (SUMFs)4
1. 	At all times relevant to these proceedings, Plaintiff was incarcerated and in CDOC
custody.
2. 	Plaintiff was housed in the RHU at FCF between August 14 and September 16,
2020. ECF 33 at 31; ECF 142 at 5, ¶ 1; ECF 189-1 at 3.
3. 	At relevant times FCF was under a modified operations plan due to the COVID-19
pandemic. ECF 189-2 ¶ 4.
4. 	At times during the COVID pandemic, entire pods in the unit where Plaintiff was
located would need to be isolated. Id. ¶ 5.
4 	In neither Plaintiff’s Response [ECF 203] or Sur-Reply [ECF 217] does he explicitly
dispute any of the Undisputed Material Facts listed by the CDOC Defendants. However, the
Court notes Plaintiff’s disputes with Defendants’ Undisputed Facts 9, 23, and 24. See ECF 203
and 217.
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5. 	Plaintiff has a diabetic pressure ulcer on his foot for which he sought medical
treatment. ECF 189-1 at 2.5
6. 	During COVID-related modified operations, medical staff visited inmates in their
cells to provide routine care. ECF 189-2 ¶ 6.
7. 	Medical staff frequently came in and out of Plaintiff’s housing unit to conduct
COVID tests and check temperatures. Id. ¶ 5.
8. 	Medical staff came to Plaintiff’s housing unit to administer insulin to inmates
shortly before meal times. Id. ¶ 7.
9. 	Corrections officers, including lieutenants and sergeants, did not oversee medical
staff and could not control when medical staff would be able to respond to a request for treatment.
Id. ¶ 11.
10. 	At meal times, inmates who worked in food service brought meal trays to Plaintiff’s
housing unit for officers to distribute to the inmates. Id. ¶ 13.
11. 	Sometimes a situation would arise such as a facility security incident that would
delay the delivery of meal trays to Plaintiff’s unit. Id. ¶ 14.
12. 	Corrections officers, including lieutenants and sergeants, did not oversee food
service and could not control when food service workers would be able to deliver meal trays to
Plaintiff’s unit. Id. ¶ 15.
13. 	On at least one occasion when meals were “very delayed,” Defendant Armenta tried
to go down to food service herself to get a plate for Plaintiff. Id. ¶ 16.
5 	The CDOC Defendants cite to Plaintiff’s deposition in support of this statement. The
cited page does not expressly describe his medical condition as a “diabetic pressure ulcer.” This
Court nevertheless accepts this statement as undisputed because it is consistent with Plaintiff’s
allegations.
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14. 	CDOC provides inmates with a formalized, three-step grievance process for
pursuing administrative remedies on a wide range of issues, including health care concerns and
prison conditions. ECF 189-3; AR 850-04.
15. 	AR 850-04 requires an inmate to file a Step 1 grievance as the first attempt to
resolve an issue. ECF 189-3 ¶ 5.
16. 	Two more steps—the Step 2 grievance and the Step 3 grievance—are needed to
complete the grievance process. Id. ¶¶ 6-8.
17. 	To exhaust administrative remedies with respect to Plaintiff’s allegations of
deliberate indifference to serious medical need, he was required to complete all three steps of
CDOC’s grievance process. Id. ¶¶ 13-16.
18. 	Plaintiff has filed many grievances while in CDOC custody, including 27
grievances before August 2020. Id. ¶ 18.
19. 	On September 21, 2020, Plaintiff filed a grievance about missing personal property.
Id. ¶ 20.
20. 	On October 4, 2020, Plaintiff filed a grievance about legal mail. Id. ¶ 21.
ANALYSIS
I. 	Administrative Exhaustion
Before Plaintiff may litigate his present § 1983 claim, he must exhaust the prison’s
available administrative remedies. 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act
(PLRA); Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739
(2001) (“Exhaustion is no longer left the discretion of the district court but is mandatory.”). A
prisoner-plaintiff satisfies this prerequisite “by properly following all the steps laid out in the
prison system’s grievance procedure,” and it is “the prison’s procedural requirements [that] define
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the steps necessary for exhaustion.” Kilman v. Brown, No. 21-1104, 2021 WL 4057687, at *3 (10th
Cir. Sept. 7, 2021) (quoting Calbart v. Sauer, 504 F. App’x 778, 782 (10th Cir. 2012)
(unpublished)). “[S]ubstantial compliance is insufficient.” Fields v. Okla. State Penitentiary, 511
F.3d 1109, 1112 (10th Cir. 2007) (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002)).
Defendants submit the Declaration of Julie Russell who is the CDOC’s Step 3 Grievance
Officer and “custodian of records for Step 3 [G]rievances.” ECF 189-3 ¶¶ 1-2. Ms. Russell explains
that Plaintiff’s complaints about delayed or denied access to diabetic ulcer care and the untimely
delivery of meals after insulin require him to use the formal administrative grievance process to
exhaust his administrative remedies. Id. ¶¶ 15-16. Ms. Russell explains that she searched CDOC’s
grievance records and found none that relate to either aspect of Plaintiff’s claim against the named
CDOC Defendants. Id. ¶¶ 17-23. Ms. Russell therefore asserts that Plaintiff “did not timely or
properly avail himself of the grievance process pursuant to CDOC Administrative Regulation 850-
04” and thus “he did not exhaust his administrative remedies with respect to his claims that
Defendants Drake, Rogers, and Armenta delayed or denied him access to medical care and timely
meals between mid-August and mid-September 2020.” Id. ¶ 24. Defendants therefore seek
summary judgment for Plaintiff’s failure to even commence—must less fully and properly
complete—prerequisite PLRA administrative exhaustion. ECF 189 at 10-14.
Plaintiff accuses Ms. Russell of “l[y]ing to the court.” ECF 203 at 4. Plaintiff attaches to
his Response a Step 1 Grievance Form dated August 27, 2020. Id. at 9. It states:
I spoke to Lt. Drake, Srgt. Rogers, and Srgt. Armenta about diabetic wound care
that I am on. Also the timing of meal with insulin. [ ] Lt. Drake, Srgt. Rogers, and
Srgt. Armenta said they would get it taken care of. Since I have not had wound care
nor have I had a meal under an hour from the time I received insulin. I have even
had a seizure where medical had to come for an Emergency.
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Id. at 9. It also references ADA protocols for diabetic prisoners. ECF 203 at 9.
Unlike the grievance forms submitted by the CDOC Defendants, ECF 189-3 at 25-27, in
the grievance forms submitted by Plaintiff, the section for the CDOC “Case Manager/CPO” to
sign and enter the date is blank, ECF 203 at 9-11. Plaintiff submits them as “Direct Evidence.”
ECF 203 at 4. He vaguely alleges, without any factual support, that grievances are thrown away at
CDOC facilities and explains that when he did not receive an answer to his grievance within the
prescribed time limit, he filed the Step 2 and Step 3 grievances unilaterally in accordance with the
regulation. Id. at 4. The latter two grievances are worded the same as his Step 1 grievance, and like
it, they lack any CDOC “Case Manager/CPO” signature or date.
Defendants contest the authenticity of these “three virtually identical grievances.” ECF 214
at 3-4, 8-12. Defendants flag two principal incongruities with them. First, they lack a signature and
date from a CDOC official. ECF 214 at 8-9. And also, the content of the first grievance is “blatantly
contradicted by the other evidence in the record.” Id. at 9. According to Defendants, Plaintiff
alleged in his Second Amended Complaint (SAC), ECF 33 at 31, and stated at his deposition, ECF
214-1 at 2, that he had suffered one seizure or convulsion event during the relevant time on
September 	15, 	2020. 	ECF 	214 	at 	10. 	While 	his 	Step-1 	grievance 	also 	references 	one
seizure/convulsion event related to his claim, the form has the earlier date of August 27, 2020.
ECF 203 at 9.
In his Sur-Reply, Plaintiff states that he did submit the grievances, having given the Step-
1 grievance form to Defendant Rogers (who returned it to him after scanning it) and the Step-2
and Step-3 grievance forms to Case Manager Thomas at BCCF. ECF 217 at 3. Plaintiff furthers
that he had an additional low blood sugar event on August 27, 2020, with resulting tunnel vision
and shakes. Id. Plaintiff also alleges that “[n]o one stamps or writes on the grievances when they
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are turned in.” Id. Plaintiff concedes that he may have “misspoke on the grievance and thought I
had a seizure because entell [sic] that point I could take care of my diabetes myself.”6
While this Court has some question about the authenticity of the grievances submitted by
Plaintiff and does note some inconsistency in them with other evidence in the record, in deciding
a Rule 56 motion, this Court “cannot and does not weigh the evidence or determine the credibility
of witnesses.” McAlister, 2025 WL 843749 at *2 (citing Fogarty, 523 F.3d at 1165). In fact, this
Court “must resolve any factual issues of controversy in favor of the non-moving party.” Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). This Court does not find that Plaintiff’s reference
in the SAC, ECF 33 at 31, and his deposition testimony, ECF 214-1 at 2, so blatantly contradict
his statements in the grievances such that “no reasonable jury could believe it.”
However, even if Plaintiff’s newly disclosed grievance forms are to be viewed in a light
most favorable to him, i.e., accepted as submitted on the date listed, and this Court finds that he
had properly exhausted the claim, Plaintiff does not proffer enough evidence to survive summary
judgment on this claim as to Defendants Drake, Rogers, and Armenta.
II. 	Deliberate Indifference
A. 	Governing Standard
“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.
6 	Confusingly, in a different part of the Sur-Reply, Plaintiff suggests he “did know what a
seizure was entell [sic] I had one in September 15, 2020.” ECF 217 at 3.
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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
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.7 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 Cnty. 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 Cnty. 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)).
7 	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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B. 	Delay or Denial of Access
Plaintiff first alleges that the Defendants denied him access to medical care for his foot
ulcer while he was in RHU. ECF 33 at 31. As he frames it in his SAC, he generally informed
Defendants Drake, Rogers, and Armenta “about the hole in my foot and how they needed to take
me to medical for daily wound care.” Id. He alleges that in September, he “was bleeding very bad
out of the wound on my foot to the point it left a baseball size spot on my sock.” Id. In the grievance
forms, he similarly alleges that he informed the three CDOC Defendants about his need for
“diabetic woundcare.” ECF 203 at 9-11. In each instance, he notes that the three CDOC Defendants
responded by at least trying to seek help for him. See ECF 33 at 31 (“They would tell me they
would try to get me over to medical . . .”); ECF 203 at 9-11 (they said “they would get it taken
care of”).
This Court liberally construes his claim under the “gatekeeper” theory because the CDOC
Defendants are not medical professionals. See Freeman v. Officer Horst, No. 22-cv-02277-NYW-
STV, 2023 WL 8654314, at *6 (D. Colo. Oct. 5, 2023) (citing Paugh v. Uintah Cnty., 47 F.4th
1139, 1154 (10th Cir. 2022)); see also 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). Case law
permits a deliberate indifference to medical needs claim to be brought against a non-medical
professional prison official if that prison official prevented the inmate from receiving treatment or
denied him access to medical personnel capable of evaluating the need for treatment. Id. (citing
Sealock, 218 F.3d at 1211).
Subjective Component
As it relates to the subjective component, this Court notes that the undisputed factual record
does not suggest a total denial of access to medical care by the CDOC Defendants while Plaintiff
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was in the RHU at FCF. Quite the opposite, the record supports that Plaintiff had substantial
contact with medical staff during the relevant period. Plaintiff concedes that he was “taken to
medical 4 or 5 times in 32 day[s].” ECF 33 at 31. And Plaintiff does not dispute that during this
time period medical staff came to the inmates’ cells to provide at least certain kinds of medical
care as well as to conduct frequent COVID-related tests.8 ECF 189 at 5 (citing ECF 189-2 ¶¶ 5-6).
And the evidence suggests that the three correctional officer Defendants, rather than
preventing Plaintiff from receiving medical care, attempted to facilitate his receiving medical care.
At his deposition, Plaintiff could not remember how many conversations about this matter he had
with Defendant Rogers, although she did tell him “that she was going to try to help me” and “[t]hat
this was going to be resolved.” ECF 214-1 at 2. Plaintiff had more than one conversation with
Defendant Armenta who told him “that she would also take care of it.” Id. Plaintiff had one
conversation with Defendant Drake about this matter, who likewise offered to help. Id. Defendant
Armenta attests that “[w]henever Mr. Jones told me he needed to be seen by medical for treatment
for his foot, I called medical to try to get his treatment set up.” ECF 189-2 ¶ 9. Plaintiff’s statements
to the contrary in the SAC, i.e., that they would “brush him off,”9 are not supported by any factual
evidence in the record.
As a result, Plaintiff fails to demonstrate that the CDOC Defendants subjectively knew or
inferred that he faced “a substantial risk of serious harm” and then disregarded that risk. Freeman,
2023 WL 8654314 at *6 (citing Paugh, 47 F.4th at 1156). The Court contrasts the facts in the
present case with those in Boretti v. Wiscomb, a case involving a prisoner’s wound care that
8 	These visits by medical staff to his unit would be in addition to the other medical care he
was provided.
9 	See ECF 33 at 31.
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survived summary judgment. 930 F.2d 1150 (6th Cir. 1991). There, plaintiff was a newly admitted
inmate in need of treatment for his wound from an acute injury. Id. at 1151. The discharge
instructions from his recent hospital visit were clear and recommended pain medication and daily
dressing changes. Id. Despite Plaintiff informing the defendant of “his medical requirements for
treatment of the wound and medication for pain” on multiple occasions, the on-duty nurses refused
to act. Id.
Unlike in Boretti, Plaintiff fails to establish that the CDOC Defendants subjectively
perceived a substantial or excessive risk to his health and then disregarded that risk. Plaintiff
suffered from a long-standing chronic condition for which Plaintiff already was receiving
treatment. Plaintiff does not establish that on those days when he asked the CDOC Defendants to
take him to the clinic that it was for an acute or emergency medical situation (as opposed to a
routine, non-urgent matter).
Objective Component
As it relates to the objective component, Plaintiff submits insufficient evidence to support
that his medical needs were “sufficiently serious.” First, Plaintiff does not allege that the wound
was infected or in need of immediate medical attention during the relevant time period. Plaintiff
presents no treatment records, sworn affidavits, or requests for additional medical care, often
referred to as kites, to confirm the necessity of treatment above what he received during this period.
Plaintiff only submits one grievance from the time period when he was in the RHU at FCF, which
merely states that he spoke to the three Defendants about his diabetic wound care10 and they told
him “they would get it taken care of.” ECF 203 at 9. While Plaintiff mentions that he required
10 	Plaintiff did not mention in the grievance that he required daily care for his wound. ECF
203 at 9.
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“daily wound care,” he provides no supporting evidence of such a need at that time.11 And he
leaves wholly vague how often he asked the CDOC Defendants to be taken to the clinic; whether
he expressed the request in terms that would have informed them of an acute medical need; and
whether the modified operations at the time would have allowed in-clinic treatment.
In his Response [ECF 203] and Sur Reply [ECF 217], rather than providing evidence to
demonstrate the objectively serious condition he had during this time, Plaintiff shifts focus to an
argument that he was not provided treatment or accommodations consistent with the ADA
Litigation Resolution. ECF 203 at 2.
In another case involving wound care in a prison, Lucido v. Correctional Med. Servs., Inc.,
the requisite level of objective medical need was clear. No. 04-CV-132-J, 2006 WL 8432350 (D.
Wyo. May 19, 2006). In Lucido, plaintiff’s blisters on his feet developed into open wound ulcers.
After medical staff determined that he was in need of “emergency surgery to remove dead tissue
from his right foot (dead tissue in which bacteria thrive),” surgery was delayed for three weeks.
Id. at *1. The delay was due to the “incompetence, disinterest, callousness and malice” of
defendants and it resulted in the amputation of the plaintiff’s foot and lower leg. Id. In that case,
defendants did not contest medical negligence, and the plaintiff submitted an affidavit of a doctor
in support. Id. at *4. Unlike in Lucido, Plaintiff does not submit evidence that would show that the
CDOC Defendants were the reason why he missed wound care appointments. As then-U.S.
Magistrate Judge Gordon P. Gallagher explained to Plaintiff, “[t]here must be an affirmative link
between the alleged constitutional violation and each individual defendant’s participation, control,
11 	The Court notes that there is evidence in the record of “daily wound care,” but that is
from the medical staff at BCCF. See ECF 175-1 at 188.
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direction, or failure to supervise.” ECF 17 at 7 (citing Butler v. City of Norman, 992 F.2d 1053,
1055 (10th Cir. 1993)). See also Sherman v. Klenke, 653 F. App’x 580, 591 (10th Cir. 2016).
Finally, Plaintiff also does not demonstrate that he suffered substantial medical harm as the
consequence of the alleged missed wound care appointments. 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 harm)
(citing Sealock, 218 F.3d at 1210 and Garrett v. Stratman, 254 F.3d 946, 949-50 (10th Cir. 2001)).
See also Kassal v. Colo. Dep’t of Corrs., No. 24-cv-00369-SBP, 2025 WL 2799839, at *5 (D.
Colo. Sept. 30, 2025). “The substantial harm requirement ‘may be satisfied by lifelong handicap,
permanent loss, or considerable pain.’” Mata, 427 F.3d at 751 (quoting Garrett, 254 F.3d at
950).Plaintiff has presented insufficient evidence on this topic. And following Plaintiff’s transfer
from FCF, on September 16, 2020, he was examined by the medical staff at BCCF. ECF 175-1 at
188. Plaintiff denied any pain or discomfort at that time. Id.
C. 	Timing of Meals
In the SAC, Plaintiff generally alleges that “there was a problem with the insulin.” ECF 33
at 31. More specifically, he alleges that the nurse would provide him with insulin and then he
would not receive food, which can be dangerous for his blood sugar levels. Id. Plaintiff specifically
mentions speaking to the CDOC Defendants about this only once. Id. Plaintiff suggests that the
CDOC Defendants also agreed to take care of this issue.
This Court notes that this claim is even less likely to constitute deliberate indifference than
Plaintiff’s last claim as it fails to support either the objective or subjective component to a valid
claim for deliberate indifference. The Court accepts as true that the medical staff administered
insulin “shortly before meal times.” SUMF No. 8. However, Plaintiff leaves unclear exactly what
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the medically acceptable time range between receiving insulin and eating a meal is. The ADA
Litigation Resolution upon which he heavily relies says only that meals should be timed with
insulin generally without specifying a specific time frame. ECF 203 at 8. This prevents the Court
from concluding that Plaintiff’s claim meets the objective component.
On the subjective side, while Plaintiff alleges that he complained to the CDOC Defendants
about the late delivery of meals on one occasion, ECF 33 at 31, Plaintiff has presented no evidence
that the CDOC Defendants were the cause of that delay or that they even contributed to the delay.
At best Plaintiff alleges nothing more than a hypothetical that the delay may have been caused by
these Defendants. Plaintiff casts the occasion when Defendant Armenta personally went to the
food service area to bring him his meal, ECF 189-2 ¶ 16, as “doing the b[are] minimum,” ECF 217
at 2.
In conclusion, as to both of Plaintiff’s deliberate indifference claims against the CDOC
Defendants, even viewing the facts, undisputed and disputed, in a light most favorable to Plaintiff,
there is insufficient evidence to provide a basis from which a reasonably jury could find the CDOC
Defendants deliberately indifferent to his medical needs based on delayed meal deliveries. This
Court therefore recommends that summary judgment be granted in their favor on this aspect of
Plaintiff’s claim.
CONCLUSION
Accordingly, the Court respectfully recommends12 that the CDOC Defendants’ Motion for
Summary Judgment [ECF 189] be granted in full and that summary judgment be entered in their
12 	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.
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favor on both aspects of Plaintiff’s claim of deliberate indifferent to medical needs brought against
them.
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 17th day of February, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
“[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
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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