IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Raymond P. Moore 

Civil Action No. 11-cv-02554-RM-MEH

RONALD M. COX,

Plaintiff,

v. 

(DRDC) WARDEN ZAVISLAN (CDOC), and

(DRDC) CAPTAIN REAUX (CDOC),

Defendants.

ORDER

This matter is before the Court on United States Magistrate Judge Michael E. Hegarty’s 

Recommendation (“Recommendation”) (ECF No. 119) that the Court grant Defendants Zavislan 

and Reaux’s motion for summary judgment (ECF No. 106). Plaintiff Ronald Cox filed timely 

objections to parts of the Recommendation (“Objection”) (ECF No. 130). 

 For the reasons stated below, the Court OVERRULES the Objection to the 

Recommendation, ADOPTS the Magistrate Judge’s Recommendation, and GRANTS 

Defendants’ motion for summary judgment. 

I. LEGAL STANDARDS

A. Review of the Magistrate Judge’s Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule 

of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of 

the magistrate judge’s [recommendation] that has been properly objected to.” In conducting its 

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review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive 

further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 

72(b)(3). An objection is proper if it is filed timely in accordance with the Federal Rules of Civil 

Procedure and specific enough to enable the “district judge to focus attention on those issues – 

factual and legal – that are at the heart of the parties’ dispute.” United States v. 2121 E. 30th St., 

73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the 

absence of a timely and specific objection, “the district court may review a magistrate’s report 

under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 

1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no 

timely objection is filed, the court need only satisfy itself that there is no clear error on the face 

of the record in order to accept the recommendation.”).

B. Summary Judgment

Summary judgment is appropriate only if there is no genuine dispute of material fact and 

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-

70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon 

whether the evidence presents a sufficient disagreement to require submission to a jury or is so 

one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once 

the moving party meets its initial burden of demonstrating an absence of a genuine dispute of 

material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a 

genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, 

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Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is “material” if it pertains to 

an element of a claim or defense; a factual dispute is “genuine” if the evidence is so 

contradictory that if the matter went to trial, a reasonable jury could return a verdict for either 

party. Anderson, 477 U.S. at 248. The facts must be considered in the light most favorable to 

the nonmoving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) 

(citations omitted).

The Court will not consider statements of fact, or rebuttals thereto, which are not material 

or are not supported by competent evidence. Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). 

Only admissible evidence may be considered when ruling on a motion for summary judgment. 

Jaramillo v. Colorado Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) 

(holding that hearsay evidence is not acceptable in opposing a summary judgment motion); 

World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits 

must be based on personal knowledge and must set forth facts that would be admissible evidence 

at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation 

omitted). “Conclusory and self-serving affidavits are not sufficient.” Id. “[O]n a motion for 

summary judgment, it is the responding party’s burden to ensure that the factual dispute is 

portrayed with particularity, without depending on the trial court to conduct its own search of the 

record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and 

citation omitted). The Court is “not obligated to comb the record in order to make [Plaintiff’s] 

arguments for [him].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 

2000). In the summary judgment context, a pro se litigant’s verified complaint may be treated as 

an affidavit as long as it satisfies the standards for affidavits outlined in Rule 56 of the Federal 

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Rules of Civil Procedure. Adams v. Dyer, 223 Fed. App’x 757, 764 n.7 (10th Cir. 2007) (citing 

Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988)). 

Further, Local Rule 7.1(e) provides that “[e]very citation in a motion, response or reply 

shall include the specific page or statutory subsection to which reference is made.” D.C. Colo. 

L. Civ. R. 7.1(e). 

C. Pro Se Status

Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and 

other filings liberally and holds them to a less stringent standard than those drafted by 

attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United 

States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). A court may not assume 

that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in 

ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State 

Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 

1173-74 (10th Cir. 1997) (stating a court may not construct a legal theory on plaintiff’s behalf) 

(citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a 

court may not construct arguments or theories for the plaintiff in the absence of any discussion of 

those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of 

different civil procedure rules. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Wells 

v. Krebs, Case No. 10 CV 00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation 

omitted), affirmed and adopted in 2010 WL 4449729. 

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II. PROCEDURAL BACKGROUND

No party objects to the Magistrate Judge’s recitation of the case’s procedural history. 

Accordingly, the Court adopts and incorporates the procedural history included within the 

Recommendation as if set forth herein. (ECF No. 119 at 2-3.) Before the Court is only 

Plaintiff’s Eighth Amendment claim of Defendants’ deliberate indifference, in their individual 

capacities, to his serious medical needs. (ECF No. 119 at 3.) 

III. PLAINTIFF’S CLAIM

Plaintiff’s is an inmate with CDOC whose sole remaining claim in this case has been cast 

as whether Defendants “violated [his] Eighth Amendment rights by denying [him] previously 

prescribed medical treatment [for] his inadvertent ingestion of razor blades.” (ECF No. 67 at 3.) 

Plaintiff’s claim has also been characterized as “deliberate indifference to Plaintiff’s serious 

medical needs.” (ECF No. 119 at 3.) At its core, Plaintiff’s claim is that he should not have 

been released to the general inmate population on June 7, 2011, following a period of 

hospitalization and confinement to a dry cell in connection with his inadvertent ingestion of razor 

blades. Instead, according to Plaintiff, he should have been returned to the hospital or remained 

in the dry cell as this, he contends, was medically prescribed.

IV. FACTUAL BACKGROUND

For the Magistrate Judge’s Findings of Fact (ECF No. 119 at 3-10) to which Plaintiff has 

not filed an objection, the Court adopts and incorporates those facts as if set forth in this Order. 

To aid comprehension of this matter, the Court briefly sets forth the minimal, pertinent factual 

background regarding Plaintiff’s Eighth Amendment claim. The Court will address Plaintiff’s 

multitude of factual objections in the Analysis section below. 

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Plaintiff is incarcerated with the Colorado Department of Corrections (“CDOC”). (ECF 

No. 14 at 2.) On May 28, 2011, Plaintiff reported that he believed he swallowed a razor blade 

implanted in a cookie that he had consumed. (ECF No. 106-1.) An on-call CDOC employee

then referred Plaintiff to Denver Health Medical Center (“Denver Health”) for x-rays. (ECF No. 

106-1.) 

Denver Health staff found that Plaintiff ingested foreign bodies, i.e., razor blades, and 

monitored Plaintiff from May 29, 2011 through June 4, 2011. (ECF Nos. 106-2, 106-3.) While 

at Denver Health, Denver Health x-rayed Plaintiff’s abdomen four times. (ECF Nos. 106-4, 106-

5, 106-6, 106-7, 106-9.) There are somewhat conflicting indications in the evidence as to 

whether one or two blades were ingested and as to whether one passed during the hospital stay. 

(See ECF Nos. 106-6, 106-7, 106-10 at 1, 3.) Nonetheless, on June 4, 2011, a Denver Health 

physician assessed Plaintiff and determined that “[t]his patient needs continued close observation 

until the F[oreign] B[ody] passes. If he can [], be monitored at another facility by nursing & get 

daily AXR [x-ray], then transfer will be reasonable. Otherwise, he needs to stay @ CCMF until 

blades pass.” (ECF No. 106-9.) 

 On June 4, 2011, Denver Health discharged Plaintiff to CDOC’s Denver Reception and 

Diagnostic Center (“DRDC”) Infirmary. (See ECF Nos. 106-3; 106-8 at ¶¶ 10-11.) At the 

DRDC, Plaintiff was placed in a “dry cell” for further monitoring to determine if he passed the 

razor blade. (ECF Nos. 106-10 at 3; 106-11.) While in the dry cell from June 4, 2011 to June 7, 

2011, CDOC clinical and security staff monitored Plaintiff and took daily x-rays of his abdomen. 

(ECF Nos. 106-10 at 4-8, 106-12, 106-13, 106-14, 106-15, 110 at 64.) 

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 On June 7, 2011, CDOC released Plaintiff from the dry cell to the general inmate 

population. (ECF No. 106-16.) He was also seen by a CDOC infirmary nurse on that date. (Id.) 

On June 8, 2011, Plaintiff’s abdomen was again x-rayed. (ECF No. 106-18.) The June 8, 2011 

x-ray revealed that a density seen on a June 6, 2011 x-ray was no longer present in the Plaintiff, 

and the treating staff detected no foreign object in Plaintiff. (ECF No. 106-18.) 

CDOC Administrative Regulations (“AR”) provide a grievance process1 for offenders to 

resolve a variety of issues, including issues related to health care concerns. (ECF Nos. 118-4, 

118-5.) AR #850-04 provides that grievances not in compliance with CDOC’s regulations will 

be denied on procedural grounds. (ECF No. 118-4 at 2.) “When a grievance is denied for a 

procedural error, the grievance officer shall certify in the response that the offender has not

exhausted the grievance process.” (ECF No. 118-5 at 5 (emphasis in original).) AR #850-04 

provides that “each grievance shall address only one problem or complaint. . . . Problems that 

arise from the same incident or set of facts shall be grieved in one grievance. . . . A substantive 

issue or remedy may not be added at a later step if it has not been contained in each previous step 

of that particular grievance.” (ECF No. 118-5 at 4.)

 Plaintiff filed a grievance concerning razor blades allegedly implanted in his food, the copays charged for his medical care, and the medical care he received when a razor allegedly 

remained inside him. (ECF No. 106-25 at 3.) Plaintiff followed his grievance through steps 2 

and 3 of the grievance procedure. (ECF No. 106-25 at 1-2.) At Step 3, a CDOC grievance 

officer denied Plaintiff’s grievance because he failed to comply with the AR #850-04 concerning 

1 The Recommendation cites to a more recent version of the CDOC AR regarding grievance processing which 

became effective December 15, 2012. (ECF No. 106-24.) The Court uses the CDOC AR (ECF Nos. 118-4, 118-5)

regarding grievance processing in effect at the time of Plaintiff’s grievance (ECF No. 106-25). The Magistrate

Judge’s failure to cite to the effective grievance processing AR does not change the Court’s holding that the 

Recommendation correctly concluded that Plaintiff failed to exhaust his administrative remedies. 

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the scope of grievances, saying that Plaintiff’s grievance contained multiple issues. (ECF No. 

106-26.) As a result, the grievance officer determined that, based on a procedural error, Plaintiff 

did not exhaust his administrative remedies. (ECF No. 106-26.) 

V. ANALYSIS

The Court has reviewed the Recommendation, Plaintiff’s Objection, and all relevant 

filings, and concludes that Magistrate Judge Hegarty’s analysis of the issues was thorough and 

his conclusions were correct. 

A. Plaintiff’s Objections to the Magistrate Judge’s Findings of Fact 

Plaintiff objects to certain of the Magistrate Judge’s findings of fact in the 

Recommendation (ECF No. 119 at 3-10). (ECF No. 130 at 2-4.) Many of the factual objections 

are in the nature of squabbles which are not particularly relevant to the critical issues before the 

Court. And most of these objections suffer from a host of infirmities which also affected 

Plaintiff’s responses to Defendants’ summary judgment motion. Plaintiff’s responses to 

Defendants’ statement of facts (as part of the summary judgment motion) did not conform to the 

Federal Rules of Civil Procedure. (See ECF No. 110 at 21-27.) Plaintiff did not affirmatively 

admit or deny Defendants’ facts. (See ECF No. 110 at 21-27.) Plaintiff responded to some of 

Defendants’ statements of facts but relied upon the Court to decipher as to whether Plaintiff 

disputed Defendants’ statements of facts. (See ECF No. 110 at 21-27.) The Magistrate Judge 

properly considered as undisputed Defendants’ statements of fact that were material and not 

disputed with competent evidence. Fed. R. Civ. P. 56(e)(2). It is not the Court’s obligation to 

identify factual support or construct legal arguments for Plaintiff. Dayton Hudson Corp. v. 

Macerich Real Estate Co., 812 F.2d 1319, 1325 (10th Cir. 1987) (citations omitted) (holding that 

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“[o]nce a party moving for summary judgment has met his initial burden, the party resisting the 

motion cannot rest on his pleadings” but rather the party opposing the motion must inform the 

trial judge of the reasons, legal or factual, why summary judgment should not be entered). 

The majority of Plaintiff’s objections to the Magistrate Judge’s findings of fact (ECF No. 

130 at 2-4) do not cite to the record which would direct the Court as to the factual basis for 

Plaintiff’s objections. For the following reasons, the Court OVERRULES Plaintiff’s objections. 

Objections 1, 2: The Magistrate Judge found that on June 5, 2011, CDOC clinical staff 

issued reports regarding Plaintiff’s medical condition. (ECF No. 119 at 6.) The Magistrate 

Judge’s findings were based on the record Defendants submitted in support of their motion for 

summary judgment. (ECF No. 106-12.) Plaintiff did not deny Defendants’ statement of facts 

which formed the basis for the Magistrate Judge’s findings. (See generally ECF No. 110 at 21-

22.) Rule 56(e)(2) provides that the Court may consider undisputed Defendants’ statements of 

fact that were not disputed. See Dayton Hudson, 812 F.2d at 1325. Further, the Court’s Practice 

Standards applicable to civil cases, effective May 2013, state that a party opposing a motion for 

summary judgment “shall . . . admit or deny the asserted material facts set forth by the movant. . 

. . Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial 

and a specific reference to material in the record supporting the denial.” Practice Standards 

(Civil Cases), Judge Raymond P. Moore, § IV.L.3.b.ii.3 (effective May 2013). Accordingly, the 

Court cannot overlook Plaintiff’s failure to admit or deny the facts contained in Defendants’ 

statement of undisputed facts. Rather, those facts are deemed admitted, and the Court must enter 

summary judgment in Defendants’ favor if it is appropriate under the facts and authorities before 

the Court. See Am. Auto. Ins. Co. v. Marlow, 666 F. Supp. 2d 1209, 1212-13 (D. Colo. 2009). 

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Without citation to the record, Plaintiff objects on the basis that “medical never asked Plaintiff if 

he was in pain or had any medical concerns.” (ECF No. 130 at 2.) Plaintiff’s objection does not 

engage the Magistrate Judge’s findings as the objection addresses whether Plaintiff was asked 

about his medical condition and the findings relate to what CDOC clinical staff reported. For 

these reasons, the Court overrules Plaintiff’s objections. 

Objection 3: The Magistrate Judge found that although Plaintiff reported that he was 

“asymptomatic,” CDOC treating physician Dr. Singh ordered an x-ray of Plaintiff’s abdomen to 

evaluate whether the foreign body had passed. (ECF No. 119 at 6.) The Magistrate Judge’s 

finding of fact was based on the record Defendants submitted in support of their motion for 

summary judgment. (ECF No. 106-13.) Plaintiff did not deny Defendants’ statement of fact 

which formed the basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 22.) 

For the reasons stated previously, supra, this fact is deemed admitted. Plaintiff objects on the 

basis that he never reported to a medical provider that he felt asymptomatic, that he was on 

medication at the time in question, and that he knew a razor blade remained in his body. (ECF 

No. 130 at 2.) Plaintiff’s objection does not engage the pertinent issue which is whether another 

x-ray was ordered to be taken of Plaintiff’s abdomen. For these reasons, the Court overrules 

Plaintiff’s objection.

Objection 4: The Magistrate Judge found that on June 7, 2011, CDOC medical provider 

Chris Owusu (“Owusu”) saw Plaintiff, made a report regarding his interaction with Plaintiff, and 

ordered another x-ray of Plaintiff’s abdomen. (ECF No. 119 at 6-7.) The Magistrate Judge’s 

finding of fact was based on the record Defendants submitted in support of their motion for 

summary judgment. (ECF No. 106-15.) Plaintiff did not deny Defendants’ statement of fact 

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which formed the basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 22.) 

For the reasons stated previously, supra, this fact is deemed admitted. Plaintiff objects on the 

basis that he never told Owusu anything that would correlate to Owusu’s report and that there is 

no radiology report for June 7, 2011. (ECF No. 130 at 2.) Plaintiff’s objection to his verbal 

interaction with Owusu is without citation to the record. Plaintiff’s objection to the lack of a 

radiology report for June 7, 2011 does not alter the factual finding that an x-ray was ordered on 

June 7, 2011. For these reasons, the Court overrules Plaintiff’s objection. 

Objection 5: The Magistrate Judge found that on June 7, 2011, Plaintiff was released 

from dry cell watch to the general inmate population. (ECF No. 119 at 7.) The Magistrate 

Judge’s finding of fact was based on the record Defendants submitted in support of their motion 

for summary judgment. (ECF No. 106-16.) Plaintiff did not deny Defendants’ statement of fact 

which formed the basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 22.) 

For the reasons stated previously, supra, this fact is deemed admitted. Plaintiff objects on the 

basis that he was released from the dry cell without an x-ray, without a medical provider’s 

permission, and in derogation of Denver Health’s medical order. (ECF No. 130 at 2.) Plaintiff’s 

objection does not engage the Magistrate Judge’s finding. For these reasons, the Court overrules 

Plaintiff’s objection.

Objection 6: The Magistrate Judge found that at the time of his release from dry cell 

watch, CDOC clinical services examined Plaintiff and reported, using various forms, that 

Plaintiff had no injuries or complaints. (ECF No. 119 at 7.) The Magistrate Judge’s finding of 

fact was based on the record Defendants submitted in support of their motion for summary 

judgment. (ECF No. 106-17.) Plaintiff did not deny Defendants’ statement of fact which formed 

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the basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 23.) For the reasons 

stated previously, supra, this fact is deemed admitted. Without citation to the record, Plaintiff 

objects because CDOC “medical” did not ask Plaintiff if he had any medical complaints and the 

anatomical form was related to a check on his restraints. (ECF No. 130 at 2.) Plaintiff’s 

objection does not engage the Magistrate Judge’s finding that CDOC clinical services 

determined, at the time of his release, that Plaintiff had no physical ailments. For these reasons, 

the Court overrules Plaintiff’s objection. 

Objection 7: The Magistrate Judge found that on June 8, 2011, Plaintiff’s abdomen was 

x-rayed again and this x-ray revealed that no radiodense foreign body could be detected and that 

the previously seen radiodensity was no longer present. (ECF No. 119 at 7.) The Magistrate 

Judge’s finding of fact was based on the record Defendants submitted in support of their motion 

for summary judgment. (ECF No. 106-18.) Plaintiff did not deny Defendants’ statement of fact 

which formed the basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 23.) 

For the reasons stated previously, supra, this fact is deemed admitted. Plaintiff objects on the 

basis that Defendants failed to respond to Plaintiff’s discovery request to mail this x-ray. (ECF 

No. 130 at 2.) Plaintiff’s objection does not engage the Magistrate Judge’s finding as the 

objection addresses a discovery dispute. For these reasons, the Court overrules Plaintiff’s 

objection. 

Objection 8: The Magistrate Judge found that on July 13, 2011, Plaintiff’s chest and 

abdomen were x-rayed again and that this x-ray revealed no evidence of a foreign body. (ECF 

No. 119 at 7.) The Magistrate Judge’s finding of fact was based on the record Defendants 

submitted in support of their motion for summary judgment. (ECF No. 106-19.) Plaintiff did 

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not deny Defendants’ statement of fact which formed the basis for the Magistrate Judge’s 

finding. (See generally ECF No. 110 at 23.) For the reasons stated previously, supra, this fact is 

deemed admitted. Plaintiff objects on the basis that this x-ray was taken 35 days after the 

“reported incident.” (ECF No. 130 at 2.) Plaintiff’s objection does not engage the Magistrate 

Judge’s finding as the objection merely states a time issue which is readily apparent. For these 

reasons, the Court overrules Plaintiff’s objection. 

Objection 9: The Magistrate Judge found that on July 13, 2012, Plaintiff reported that he 

had swallowed pieces of a metal inhaler and that an x-ray taken of his abdomen on that day 

revealed no indication of a foreign body. (ECF No. 119 at 7.) The Magistrate Judge’s finding of 

fact was based on the record Defendants submitted in support of their motion for summary 

judgment. (ECF Nos. 106-20, 106-21.) Plaintiff did not deny Defendants’ statements of fact 

which formed the basis for the Magistrate Judge’s findings. (See generally ECF No. 110 at 23-

24.) For the reasons stated previously, supra, these facts are deemed admitted. Plaintiff objects 

on the basis that the July 2012 x-ray is not related to his razor blade complaint. (ECF No. 130 at 

2.) Plaintiff’s objection does not engage the Magistrate Judge’s findings. For these reasons, the 

Court overrules Plaintiff’s objection, but notes his relevance concern. 

Objection 10: The Magistrate Judge found that Defendant Zavislan’s practice was to 

consult with staff, including clinical staff, as to the appropriate next steps when an offender is 

released from the dry cell. (ECF No. 119 at 8.) The Magistrate Judge’s finding of fact was 

based on the record Defendants submitted in support of their motion for summary judgment. 

(ECF No. 106-22 at ¶ 7.) Plaintiff did not deny Defendants’ statement of fact which formed the 

basis for the Magistrate Judge’s finding. (See generally ECF No. 110.) For the reasons stated 

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previously, supra, this fact is deemed admitted. Without citation to the record, Plaintiff objects 

on the basis that Defendant Zavislan deviated from her practice regarding dry cell watches and 

that Defendant Zavislan released Plaintiff without a doctor’s prior approval. (ECF No. 130 at 3.) 

Plaintiff, however, fails to cite any CDOC AR that required Defendant Zavislan to extend 

Plaintiff’s dry cell watch or cite to any record evidence demonstrating that Defendant Zavislan 

was required to check with a doctor prior to transferring him from a dry cell to the general 

inmate population. Plaintiff’s objection does not engage the Magistrate Judge’s finding as it is 

Defendant Zavislan’s practice to consult with clinical staff for next steps when an offender is 

released from the dry cell. And not in the record is evidence that it was Defendant Zavislan’s 

practice to consult with clinical staff prior to releasing a prisoner from dry cell watch. For these 

reasons, the Court overrules Plaintiff’s objection.

Objection 11: The Magistrate Judge found that Defendant Zavislan follows clinical staff 

recommendations as to medical care offenders should receive and that she cannot recall an 

instance in which she has overridden a recommendation for medical treatment made by clinical 

staff. (ECF No. 119 at 8.) The Magistrate Judge’s finding of fact was based on the record 

Defendants submitted in support of their motion for summary judgment. (ECF No. 106-22 at ¶ 

10.) Plaintiff did not deny Defendants’ statement of fact which formed the basis for the 

Magistrate Judge’s finding. (See generally ECF No. 110 at 25-26.) For the reasons stated 

previously, supra, this fact is deemed admitted. Plaintiff objects on the basis that “no medical 

personal [sic] recommended Plaintiff to be released from dry[]cell watch.” (ECF No. 130 at 3.) 

Plaintiff’s objection does not engage the Magistrate Judge’s finding as the objection addresses a 

separate issue regarding his medical care. (ECF No. 130 at 3.) Further, Plaintiff’s response to 

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Defendants’ statement of material fact in this regard (ECF No. 110 at 25-26) relies upon Denver 

Health’s recommendation as to his desired medical care (ECF No. 106-3). But CDOC medical 

staff was treating Plaintiff at the time of his release from dry cell and continued to do so after his 

release, thus CDOC was providing Plaintiff with “follow-up” medical care. (ECF No. 106-8 at 

¶¶ 11, 15-17.) For these reasons, the Court overrules Plaintiff’s objection.

Objection 12: The Magistrate Judge found that Defendant Zavislan “does not recall 

knowing that a razor blade remained in Plaintiff’s body at the time he was released from dry cell 

observation nor making any decisions relating to Plaintiff’s transfer that would have been 

contrary to a medical directive.” (ECF No. 119 at 8.) The Magistrate Judge’s finding of fact 

was based on the record Defendants submitted in support of their motion for summary judgment. 

(ECF No. 106-22 at ¶ 16.) Plaintiff did not deny Defendants’ statement of fact which formed the 

basis for the Magistrate Judge’s finding. (See generally ECF No. 110 at 26.) For the reasons 

stated previously, supra, this fact is deemed admitted. Plaintiff objects on the basis that 

Defendant Reaux admitted that she reported Plaintiff’s progress to Defendant Zavislan (ECF No. 

110-1 at 44) and that Defendant Reaux knew Plaintiff was released despite not passing the razor 

blade (ECF No. 110-1 at 45). (ECF No. 130 at 3.) Plaintiff’s objection based upon a chain-ofcommand issue is well-taken, nevertheless it is insufficient to affect the ultimate resolution of 

this matter as it does not address whether Plaintiff exhausted his administrative remedies or 

whether Defendants acted with deliberate indifference to his serious medical needs, see infra

V.B and V.C. 

Objection 13: The Magistrate Judge found that clinical staff is not within Defendant 

Zavislan’s chain of command. (ECF No. 119 at 8.) The Magistrate Judge’s finding of fact was 

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based on the record Defendants submitted in support of their motion for summary judgment. 

(ECF No. 106-22 at ¶ 11.) This fact was not submitted as a separate statement of fact 

necessitating Plaintiff’s response to avoid a deemed admission. Plaintiff objects on the basis that 

Defendant Zavislan follows clinical staff’s recommendation. (ECF No. 130 at 3.) Plaintiff’s 

objection, however, is without citation to the record and does not address the substance of the 

factual finding. (See ECF No. 130 at 3.) For these reasons, the Court overrules Plaintiff’s 

objection. 

Objection 14: The Magistrate Judge found that Defendant Reaux did not have access to 

Plaintiff’s medical records and any information she obtained about his medical condition or 

course of treatment would be based on verbal reports to her from clinical staff. (ECF No. 119 at 

8-9.) The Magistrate Judge’s finding of fact was based on the record Defendants submitted in 

support of their motion for summary judgment. (ECF No. 106-23 at ¶ 7.) Plaintiff did not deny 

Defendants’ statements of fact which formed the basis for the Magistrate Judge’s finding. (See 

generally ECF No. 110.) For the reasons stated previously, supra, these facts are deemed 

admitted. Plaintiff objects on the basis that Defendant Reaux reviewed a log sheet and received 

reports from officers as to Plaintiff’s progress and that the log sheets stated that no razor blade 

had been found. (ECF No. 130 at 3.) Plaintiff’s objection does not engage the Magistrate 

Judge’s finding as the objection does not address what the clinical staff told Defendant Reaux as 

opposed to CDOC correctional officers. Plaintiff essentially argues that by virtue of reviewing 

the log sheets, to which Plaintiff has not provided a record citation, Defendant Reaux would have 

been aware of a razor blade remaining in Plaintiff. But the log sheets did not affirmatively 

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identify that a razor blade remained in Plaintiff, rather they only stated that one has not been 

found. (See ECF No. 106-10.) For these reasons, the Court overrules Plaintiff’s objection. 

Objection 15: The Magistrate Judge found that it was Defendant Reaux’s practice to 

discuss an offender’s medical status with clinical staff before releasing an inmate from dry cell 

observation. (ECF No. 119 at 9.) The Magistrate Judge’s finding of fact was based on the 

record Defendants submitted in support of their motion for summary judgment. (ECF No. 106-

23 at ¶ 10.) Plaintiff did not deny Defendants’ statements of fact which formed the basis for the 

Magistrate Judge’s finding. (See generally ECF No. 110 at 26.) For the reasons stated 

previously, supra, this fact is deemed admitted. Without citation to the record, Plaintiff objects 

on the basis that there is no record to show that Defendant Reaux followed a CDOC “policy” 

requiring a medical consultation prior to his release from dry cell watch. (ECF No. 130 at 3.) 

Plaintiff’s objection does not engage the Magistrate Judge’s finding as the objection addresses an 

unidentified policy as opposed to Defendant Reaux’s practice. Plaintiff states that he was 

released from dry cell watch prior to CDOC’s officers consulting with medical staff. (ECF No. 

130 at 3.) Plaintiff, neither in his objection nor his response to Defendants’ statement of fact 

identifies anything that required Defendant Reaux to receive a medical provider’s permission

before releasing an inmate from dry cell observation. For these reasons, the Court overrules 

Plaintiff’s objection. 

Objection 16: The Magistrate Judge found that Defendant Reaux was not aware of 

instructions from a medical provider that Plaintiff should be returned to a medical facility if 

Plaintiff did not pass the foreign body. (ECF No. 119 at 9.) The Magistrate Judge’s finding of 

fact was based on the record Defendants submitted in support of their motion for summary 

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judgment. (ECF No. 106-23 at ¶ 9.) Plaintiff did not deny Defendants’ statements of fact which 

formed the basis for the Magistrate Judge’s finding. (See generally ECF No. 110.) For the 

reasons stated previously, supra, this fact is deemed admitted. Plaintiff objects on the basis that 

Defendant Reaux admitted that Plaintiff made her aware of doctor’s instructions. (ECF No. 130 

at 3.) Plaintiff’s response to Defendants’ statement of fact and his objection purport to rely on 

Defendant Reaux’s admission (ECF No. 110-1 at 44-45). But Defendant Reaux did not admit 

that Plaintiff advised her of a doctor’s instructions that he was to be returned to an outside 

medical facility if the razor blades did not pass. (ECF No. 110-1 at 44-45.) For these reasons, 

the Court overrules Plaintiff’s objection. 

Objection 17: The Magistrate Judge found that Defendant Reaux interacted with Plaintiff 

while he was in the dry cell and Defendant Reaux did not observe that Plaintiff was in pain or 

that he needed medical attention. (ECF No. 119 at 9.) The Magistrate Judge’s finding of fact 

was based on the record Defendants submitted in support of their motion for summary judgment. 

(ECF No. 106-23 at ¶ 6.) Plaintiff did not deny Defendants’ statements of fact which formed the 

basis for the Magistrate Judge’s finding. (See generally ECF No. 110.) For the reasons stated 

previously, supra, these facts are deemed admitted. Plaintiff objects on the basis that Defendant 

Reaux did not ask Plaintiff if he was in pain or having medical complications but depended upon 

her visual assessment. (ECF No. 130 at 3.) Plaintiff’s objection does not engage the Magistrate 

Judge’s finding. For these reasons, the Court overrules Plaintiff’s objection. 

Objection 18: The Magistrate Judge found that CDOC denied Plaintiff’s grievance 

because Plaintiff failed to comply with the administrative regulation concerning the scope of 

grievances as his grievance contained multiple issues and as a result, the grievance officer 

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determined that Plaintiff did not exhaust his administrative remedies. (ECF No. 119 at 10.) The 

Magistrate Judge’s finding of fact was based on the record Defendants submitted in support of 

their motion for summary judgment. (ECF No. 106-26.) Plaintiff did not deny Defendants’ 

statements of fact which formed the basis for the Magistrate Judge’s finding. (See generally

ECF No. 110 at 27.) For the reasons stated previously, supra, these facts are deemed admitted. 

Plaintiff objects on the basis that he was not given a chance to correct the procedural error and 

that Defendants failed to apply CDOC administrative regulations properly. (ECF No. 130 at 4.) 

Plaintiff, in opposition to Defendants’ motion for summary judgment, cited to a more recent 

version of the CDOC Administrative Regulation (“AR”) regarding grievance processing which 

became effective December 15, 2012. (ECF No. 106-24.) As discussed previously, the Court 

uses the CDOC AR regarding grievance processing in effect (ECF Nos. 118-4, 118-5) at the time 

of Plaintiff’s grievance (ECF No. 106-25). The Magistrate Judge’s failure to cite the effective 

grievance-processing AR does not change the Court’s finding that Plaintiff failed to exhaust his 

administrative remedies. Based on the applicable AR grievance procedure (ECF Nos. 118-4, 

118-5), nothing required CDOC to afford Plaintiff an opportunity to correct procedural errors 

prior to the culmination of the grievance process. For these reasons, the Court overrules 

Plaintiff’s objection.

B. Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation 

that Plaintiff Failed to Exhaust His Administrative Remedies

The Magistrate Judge recommended granting Defendants’ summary judgment motion 

due to Plaintiff’s failure to exhaust available administrative remedies before suing over his 

prison conditions. (ECF No. 119 at 12-15.) The Magistrate Judge held that Plaintiff failed to 

comply with the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), as his grievance 

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was procedurally deficient as determined by CDOC, thus he did not exhaust his administrative 

remedy. (ECF No. 119 at 12-15.) Plaintiff objects to this holding on the basis that (1) Plaintiff’s 

grievance addressed only one issue (ECF No. 130 at 4); (2) no CDOC employee informed 

Plaintiff that his grievance was procedurally deficient until CDOC’s response in the final 

grievance-process step in derogation of CDOC grievance processing policy (ECF No. 130 at 4-

5); and (3) CDOC failed to address his grievance as an emergency (ECF No. 130 at 6-7).

Because a prison’s procedural requirements define the steps necessary for exhaustion, an 

inmate may only exhaust by properly following all of the steps laid out in the prison’s grievance 

procedure. Jones v. Bock, 549 U.S. 199, 218 (2007); see also Howard v. Waide, 534 F.3d 1227, 

1243-44 (10th Cir. 2008). If a facility fails to notify inmates of the requirements of a grievance2

, 

“a grievance [will] satisf[y] § 1997e(a)’s exhaustion requirement so long as it provides prison 

officials with enough information to investigate and address the inmate’s complaint internally.” 

Kikumura v. Osagie, 461 F.3d 1269, 1284 (10th Cir. 2006), overruled in part on other grounds 

as recognized in Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008). 

Initially, the Court notes that Magistrate Judge Hegarty relied upon an inapplicable 

CDOC AR concerning grievance processing (ECF No. 119 at 13-15). The Recommendation 

cites to a more recent version CDOC AR regarding grievance processing which became effective 

December 15, 2012. (ECF No. 106-24.) This Court uses the CDOC AR (ECF Nos. 118-4, 118-

5) regarding grievance processing in effect at the time of Plaintiff’s grievance (ECF No. 106-25). 

The Magistrate Judge’s failure to cite to the applicable CDOC AR concerning grievance 

processing does not impact the resolution as to whether Plaintiff exhausted his administrative 

2 Plaintiff did not file an objection on the basis that CDOC did not inform him initially of the requirements of a 

grievance. Plaintiff’s argument that CDOC failed to inform him that his grievance was procedurally deficient does 

not address whether CDOC failed to notify him of the “requirements” of a grievance. 

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remedy. Neither Plaintiff’s brief in opposition to Defendants’ summary judgment motion nor 

Plaintiff’s Objection cite to the effective CDOC AR concerning grievance processing. 

AR #850-04 provides that grievances not in compliance with CDOC’s regulations will be 

denied on procedural grounds. (ECF No. 118-4 at 2.) “When a grievance is denied for a 

procedural error, the grievance officer shall certify in the response that the offender has not

exhausted the grievance process.” (ECF No. 118-5 at 5 (emphasis in original).) AR #850-04 

provides that “each grievance shall address only one problem or complaint. . . . Problems that 

arise from the same incident or set of facts shall be grieved in one grievance. . . . A substantive 

issue or remedy may not be added at a later step if it has not been contained in each previous step 

of that particular grievance.” (ECF No. 118-5 at 4.) This information informed Plaintiff of the 

requirement to limit his grievance to one problem or complaint. 

The Magistrate Judge found that a CDOC grievance officer informed Plaintiff that his 

grievance was denied for raising multiple issues regarding different events. (ECF No. 106-26.) 

Plaintiff objects on the basis that his grievance addressed the singular issue of “razor blades.” 

(ECF No. 130 at 5.) The Court is not persuaded by Plaintiff’s argument. The Magistrate Judge 

aptly concluded that Plaintiff’s grievance addressed more than one issue and, importantly, added 

new complaints at subsequent steps of the grievance procedure. (ECF No. 119 at 14.) In Step 1, 

Plaintiff grieved that he was the victim of food tampering. (ECF No. 106-25 at 3.) In Step 2, 

Plaintiff grieved that he was released from DRDC dry cell watch with a razor blade still in his 

system. (ECF No. 106-25 at 2.) In Step 3, Plaintiff grieved that he was charged for medical 

care. (ECF No. 106-25 at 1.) These are clearly separate issues which addressed more than one 

complaint not stemming from the “same incident or set of facts” and added substantive issues in 

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later steps. (ECF No. 118-5 at 4.) Although “razor blades” may be the overriding theme of his 

grievance, Plaintiff addressed more than one issue based on the temporal nature of his grievance

and added substantive issues at subsequent stages in the grievance process. 

Plaintiff’s objection that CDOC failed to comply with its own AR by failing to inform 

him of the procedural deficiencies in his grievance prior to CDOC’s Step 3 response finds no 

support in the effective CDOC AR concerning grievance processing (ECF Nos. 118-4, 118-5). 

Plaintiff’s objection that CDOC failed to comply with its own AR by failing to address 

his grievance as an emergency3,4 finds no support in the effective CDOC AR concerning 

grievance processing (ECF Nos. 118-4, 118-5). The applicable CDOC AR states that if “the 

grievance is determined to not be an emergency, it shall be routed through normal channels. 

Procedures outlined in this AR shall apply.” (ECF No. 118-5 at 7.) Plaintiff, via competent and 

admissible evidence, failed to show that CDOC did not route his grievance through the normal 

channels after determining it was not an emergency grievance. 

For these reasons, the Court overrules Plaintiff’s objection to the Magistrate Judge’s 

finding that he failed to exhaust his administrative remedies.

C. Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation 

that Defendants are Entitled to Qualified Immunity

The Magistrate Judge recommended granting Defendants’ summary judgment motion on 

the basis that each Defendant is entitled to qualified immunity. (ECF No. 119 at 15-22.) The 

3 Additionally, the Court observes that Plaintiff did not argue that Defendants failed to treat his grievance as an 

emergency in opposition to Defendants’ summary judgment motion. (See generally ECF No. 110.) Thus, the Court 

also finds that Plaintiff waived this argument. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). 4 There is nothing in the record which indicates that Plaintiff’s grievance was an emergency. Despite the fact that 

Plaintiff wrote “Emergency Grievance” at the top of the grievance form, the Step One grievance was purported 

written on June 29, 2011, and not received by CDOC staff until July 18, 2011—considerably after his medical 

condition had resolved. (See ECF No. 106-25 at 3.)

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Magistrate Judge held that neither Defendant was deliberately indifferent to Plaintiff’s serious 

condition. (ECF No. 119 at 21.) Plaintiff objects to this holding on the basis that (1) Defendants 

transferred Plaintiff from the dry cell to the general inmate population without a doctor’s consent 

(ECF No. 130 at 8); and (2) Plaintiff should have received follow-up care with Denver Health 

(ECF No. 130 at 9). 

“The doctrine of qualified immunity protects government officials from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 

231 (2009) (internal quotation marks and citation omitted). To resolve a claim of qualified 

immunity, the Court must consider two elements: (1) whether a constitutional violation 

occurred, and (2) whether the right violated was “clearly established” at the time of the violation. 

Id. at 230-31. The Court may “exercise [its] sound discretion in deciding which of the two 

prongs of the qualified immunity analysis should be addressed first in light of the circumstances 

in the particular case at hand.” Id. at 236; accord Brown v. Montoya, 662 F.3d 1152, 1164 (10th 

Cir. 2011). “Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the 

inquiry.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). 

The Supreme Court has held that “[d]eliberate indifference to serious medical needs of 

prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth 

Amendment,” and states a cause of action under 42 U.S.C. § 1983 (“Section 1983”). Estelle v. 

Gamble, 429 U.S. 97, 104-05 (1976) (internal citations omitted). A claim of deliberate 

indifference under the Eighth Amendment is rooted in the “government’s obligation to provide 

medical care for those whom it is punishing by incarceration,” where a prisoner cannot access 

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medical care through any other means. Id. at 103. Nevertheless, “[not] every claim by a 

prisoner that he has not received adequate medical treatment states a violation of the Eighth 

Amendment.” Id. at 105. Deliberate indifference to serious medical needs can be exhibited by 

prison staff in failing to properly treat a medical condition, or “by prison guards in intentionally 

denying or delaying access to medical care.” Id. at 104-05. Where medical staff mistreat a 

condition, they may avoid liability by showing their conduct was “merely negligent . . . rather 

than deliberately indifferent,” but where “the medical professional knows that his role in a 

particular medical emergency is solely to serve as a gatekeeper for other medical personnel 

capable of treating the condition, and if he delays or refuses to fulfill that gatekeeper role . . . he 

may also be liable for deliberate indifference from denying access to medical care.” Sealock v. 

Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). 

To determine if a plaintiff has stated an Eighth Amendment claim for deliberate 

indifference, a court must engage in “a two-pronged inquiry, comprised of an objective 

component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). 

A difference in medical opinion regarding treatment does not amount to a constitutional 

violation. See Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Coppinger v. 

Townsend, 398 F.2d 392, 394 (10th Cir. 1968). “A complaint that a physician has been negligent 

in diagnosing or treating a medical condition does not state a valid claim of medical 

mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. 

 1. Objective Prong

The objective prong examines whether a medical need is “‘sufficiently serious’ to be 

cognizable under the Cruel and Unusual Punishment Clause.” Mata v. Saiz, 427 F.3d 745, 753 

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(10th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A serious medical 

need that satisfies the objective prong in the Tenth Circuit Court of Appeals 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.” Ramos v. Lamm, 639 F.2d 559, 

575 (10th Cir. 1980) (quotation and citation omitted). Where the claimed harm is the result of a 

delay in receiving medical care, such a delay “only constitutes an Eighth Amendment violation 

where the plaintiff can show that the delay resulted in substantial harm.” Sealock, 218 F.3d at 

1210. The objective standard does not require proof of a permanent injury or a showing that the 

defendant caused the harm directly; evidence that the medical need was serious and the delay 

“unnecessarily prolonged [the inmate’s] pain and suffering” is sufficient. Id. at 1210 n.5. The 

substantial harm requirement may be satisfied by a lifelong handicap, permanent loss, or 

considerable pain. Id. (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (internal 

quotations omitted)).

 The Magistrate Judge found that Plaintiff established an objectively serious medical need 

since a physician had informed CDOC that he needs to be closely monitored and x-rayed to 

determine whether Plaintiff passed a razor blade. (ECF No. 119 at 18-19.) No party filed an 

objection to this holding and the Court finds no clear error in the Magistrate Judge’s conclusion. 

2. Subjective Prong 

“The subjective component is akin to recklessness in the criminal law [context], where, to 

act recklessly, a person must consciously disregard a substantial serious harm.” Self, 439 F.3d at

1231 (internal quotation marks and citation omitted and emphasis added). As such, the 

subjective component is not satisfied “unless the [prison] official knows and disregards an 

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excessive risk to inmate health or safety; the official must both be aware of the facts from which 

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw 

the inference.” Farmer, 511 U.S. at 837. A prison official who intentionally interferes with 

prescribed treatment is deliberately indifferent to a prisoner’s medical condition. Estelle, 429 

U.S. at 104-05. 

The Magistrate Judge found that Defendants were not deliberately indifferent to 

Plaintiff’s serious medical condition. (ECF No. 119 at 21.) Plaintiff filed an objection to this 

aspect of the Recommendation. (ECF No. 130 at 8-10.) 

On June 4, 2011, Denver Health discharged Plaintiff with the following recommendation 

as to his care: “[Plaintiff] needs continued close observation until the [Foreign Body] passes. If 

he can [], be monitored at another facility by nursing & get daily [x-ray], then transfer will be 

reasonable.” (ECF 106-9.) Further, Denver Health’s discharge record states “no follow up 

needed unless razor does not pass.” (ECF No. 106-3.) Plaintiff was monitored in a dry cell 

watch from June 4, 2011 until June 7, 2011. (ECF No. 106-10.) On June 7, 2011, Plaintiff was 

transferred from the dry cell to the general inmate population. (ECF No. 106-16.) Plaintiff 

admitted that he underwent x-rays each day of his dry cell watch observation. (ECF No. 110 at 

64.) On June 8, 2011, Plaintiff received additional medical care. (ECF No. 106-18.) The June 

8th medical care included an x-ray of Plaintiff’s abdomen which determined that Plaintiff had no 

foreign body in his system. (ECF No. 106-18.) Thus, from the time of his discharge from 

Denver Health until June 8, 2011—the date on which it is verifiable that a razor blade was no 

longer in Plaintiff’s body, Plaintiff was closely monitored and received daily x-rays. 

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The Court concludes that Plaintiff received the constitutionally required medical care. 

Plaintiff’s first objection is unfounded. Plaintiff cites no record evidence that Defendants could 

not transfer him from dry cell watch to the general inmate population without the permission of a 

medical provider. Plaintiff’s second objection is focused on Plaintiff’s desire for different and 

better treatment (ECF No. 130 at 8-9) which is not a cognizable Eighth Amendment claim 

pursuant to Section 1983. See Thompson, 289 F.3d at 1222; see also Coppinger, 398 F.2d at 

394. 

As a further ground on which to grant Defendants’ qualified immunity defense, which 

this Court interprets as directed toward any characterization of Plaintiff’s claim as implicating a 

delay in medical care, the Court agrees with the Magistrate Judge’s finding that Plaintiff failed to 

demonstrate that he suffered any substantial harm as a result of being released from dry cell to 

the general population with a razor blade in his system. See Sealock, 218 F.3d at 1210. 

Plaintiff’s objection points to potential injuries as a result of being released (ECF No. 130 at 9) 

as well as injuries that he contends resulted from the ingestion of the razor blades (ECF No. 130 

at 10). Therefore, Plaintiff failed to rebut the Defendants’ argument that he suffered no 

substantial harm as a result of his release to the general inmate population with a razor blade 

allegedly still in his system.

For these reasons, the Court overrules Plaintiff’s objection that Defendants are not 

entitled to qualified immunity. Plaintiff failed to establish an Eighth Amendment violation.

D. Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation 

that Plaintiff Suffered No Damages

The Magistrate Judge recommended granting Defendants’ summary judgment motion as 

to Plaintiff’s compensatory damages claim on the basis that Plaintiff failed to demonstrate that he 

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suffered a physical injury as a result of being released from the dry cell into the general inmate 

population. (ECF No. 119 at 22-23.) Plaintiff’s objection to this aspect of the Recommendation 

is not a model of clarity. (ECF No. 130 at 10.) 

 Under the PLRA, 42 U.S.C. § 1997e(e), a prisoner cannot maintain a suit for 

compensatory damages unless he suffered a physical injury in addition to mental or emotional 

harms as a result of the Section 1983 violation. Lawson v. Engleman, 67 Fed. App’x 524, 526-

27 (10th Cir. 2003) (quoting Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 807 (10th Cir. 

1999)); see also Turner v. Schultz, 130 F. Supp. 2d 1216, 1222-23 (D. Colo. 2001). “[A] 

prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered from the physical 

manifestations of mental or emotional injuries.” Hughes v. Colorado Dep’t of Corr., 594 F. 

Supp. 2d 1226, 1238 (D. Colo. 2009) (citations omitted). 

 Plaintiff does not directly confront the Magistrate Judge’s holding that Plaintiff did not 

establish that he suffered a physical injury. (See generally ECF No. 130 at 10.) Rather, Plaintiff 

relies upon emotional and mental anguish. (ECF No. 130 at 10.) Mental or emotional injuries 

without a physical injury will not suffice under the PLRA. 

 For these reasons, the Court overrules Plaintiff’s objection that he can pursue a 

compensatory damages claim against Defendants.

VI. CONCLUSION

Based on the foregoing and a de novo review as to which an objection was filed, the 

Court: 

(1) OVERRULES Plaintiff’s Objection (ECF No. 130); 

(2) ADOPTS the Magistrate Judge’s Recommendation (ECF No. 119); and

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