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Be advised that all parties shall have fourteen (14) days after service hereof to serve and file

any written objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings

or recommendations to which the objections are being made. The District Court need not consider

frivolous, conclusive or general objections. A party’s failure to file such written objections to

proposed findings and recommendations contained in this report may bar the party from a de novo

determination by the District Judge of the proposed findings and recommendations. United States

v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file

written objections to the proposed findings and recommendations within fourteen (14) days after

being served with a copy may bar the aggrieved party from appealing the factual findings of the

Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140,

155 (1985); In re Garcia, 347 F. App’x 381, 382-83 (10th Cir. 2009).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

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

RONALD M. COX,

Plaintiff,

v.

(DRDC) WARDEN ZAVISLAN (CDOC), and

(DRDC) CAPTAIN REAUX (CDOC),

Defendants.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________________

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendants’ Motion for Summary Judgment [filed September 12, 2013;

docket #106]. The motion is referred to this Court for recommendation. (Docket #107.) The matter

is fully briefed and oral argument would not materially assist the Court in its adjudication of the

motion. For the following reasons and based on the entire record herein, the Court RECOMMENDS

that Defendants’ motion be GRANTED.

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BACKGROUND

I. Procedural History

 Plaintiff initiated this lawsuit pro se on September 29, 2011. (Docket #1.) His motion for

leave to proceed in forma pauperis was granted on October 5, 2011. (Docket #3.) Although

Plaintiff was initially incarcerated at Limon Correctional Facility, he is now housed at the Sterling

Correctional Facility where he remains in the custody of the Colorado Department of Corrections

(“CDOC”). 

Upon initial review of Plaintiff’s original complaint, Magistrate Judge Boland directed

Plaintiff to file an amended complaint within thirty days of the order. (Docket #6.) Plaintiff filed

an “amended complaint” on December 22, 2011. (Docket #9.) Upon review of Plaintiff’s amended

complaint, Magistrate Judge Boland directed Plaintiff to file a second amended complaint within

thirty days of the order. (Docket #11.) At Plaintiff’s request, Magistrate Judge Boland extended

the deadline through and including March 30, 2012. (Docket #13.) Plaintiff filed a Second

Amended Complaint on February 28, 2012, which is the operative pleading in this action. (Docket

#14.) 

Plaintiff’s Second Amended Complaint has been construed as asserting four causes of action.

In Claim 1, Plaintiff alleges that Defendants intentionally denied Plaintiff medical treatment in

violation of the Eighth Amendment. This claim has been divided into two sub-claims by the Court.

(See docket #18 at 4.) In Claim (1)(a), Plaintiff contends that he was denied due process of the law

and subjected to cruel and unusual punishment when he was served a meal tray that contained two

razor blades. (Id.) In Claim (1)(b), Plaintiff asserts that he was subjected to cruel and unusual

punishment by Nurse Doug when he was denied timely medical treatment both on the night he

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swallowed the razor blades and the following afternoon. (Id.) In Claim 2, Plaintiff argues that

Captain Reaux, Warden Zavislan, and DOC Executive Director Tom Clements inflicted cruel and

unusual punishment on Plaintiff in violation of the Eighth Amendment by subjecting him to illegal

conditions of confinement and by denying him medical treatment in response to his ingestion of

razors found in the prison food. (Docket #14 at 8-9.) In Claim 3, Plaintiff argues that Defendants

conspired to deprive Plaintiff of his “federally guaranteed rights.” (Id. at 10.) 

On March 20, 2012, during initial review, Judge Babcock issued an order dismissing Claims

(1)(a) and 3 as legally frivolous and dismissing Correctional Officer Pastilletti, Lieutenant Carigan,

Captain Zerbo, and DOC Executive Director Tom Clements as Defendants. (Docket #18.)

Thereafter, Defendants filed a motion to dismiss the remaining claims; after briefing, this Court

construed Claim 2 as consisting of two claims (2(a) for conditions of confinement and 2(b) for

deliberate indifference to a serious medical need) and recommended that the District Court dismiss

all claims against the Defendants in their official capacities, Claim (1)(b) against Nurse Doug in his

individual capacity and Claim 2(a) against Captain Reaux and Warden Zavislan in their individual

capacities. (Docket #40.) The District Court adopted the recommendation on March 12, 2013

(docket #67); therefore, the only claim remaining in this case is Claim 2(b) for deliberate

indifference to Plaintiff’s serious medical needs against Captain Reaux and Warden Zavislan in their

individual capacities.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to the

Plaintiff, who is the non-moving party in this matter. 

1. Plaintiff Ronald Cox currently is incarcerated with the Colorado Department of Corrections

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Typically, 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. See

Adams v. Dyer, 223 F. App’x 757, 764 n.7 (10th Cir. 2007) (citing Conaway v. Smith, 853 F.2d 789,

792 (10th Cir. 1988)). 

4

(“CDOC”). Second Amended Complaint, docket #14 at 2.2

2. On the night of May 28, 2011, Plaintiff reported that he believed he swallowed a razor blade

implanted in a cookie he ate. Ambulatory Health Record, Exh. A-1 to motion, docket #106-1.

3. CDOC Nurse Doug Christiansen responded to Plaintiff’s concerns at approximately 10:00

p.m. on May 28, and saw him again the next morning. Id. An on-call provider then referred

Plaintiff to Denver Health Medical Center (“Denver Health”) for x-rays. Id.

4. Denver Health staff found that Plaintiff “ingest[ed] a foreign body” and initially

recommended that Plaintiff be monitored for 23 hours for passage of the foreign body. Order for

Inpatient Admission or Observation Services, May 29, 2011, Exh. A-2 to motion, docket #106-2.

However, Plaintiff’s stay at Denver Health extended to seven days, from May 29, 2011 through June

4, 2011. Discharge Record/Instructions, Exh. A-3 to motion, Docket #106-3.

5. While at Denver Health, Plaintiff’s abdomen was x-rayed four times. The first x-ray, on May

29, 2011, revealed a spot that “could represent a razor blade or other foreign body.” X-Ray Final

Report, May 29, 2011, Exh. A-4 to motion, docket #106-4.

6. On May 30, 2011, a second x-ray showed a “metallic foreign body” advancing through the

abdomen. X-Ray Final Report, May 30, 2011, Exh. A-5 to motion, docket #106-5.

7. The next day, a third x-ray showed a “metallic foreign body is located in the mid right

abdomen, likely ascending colon.” X-Ray Final Report, June 1, 2011, Exh. A-6 to motion, docket

#106-6.

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8. On June 2, 2011, the fourth x-ray showed “what appears to be 2 separate razor blades” “in

the right lower quadrant” of Plaintiff’s abdomen. X-Ray Final Report, June 2, 2011, Exh. A-7 to

motion, docket #106-7.

9. The x-rays demonstrated the “probable progression of razor.” Progress Record, Exh. A-9

to motion, docket #106-9.

12. On June 4, 2011, a Denver Health physician assessed the Plaintiff saying the x-rays “suggest

that FB [foreign body] has migrated to R colon. It appears that the FB will likely pass per rectum.”

Id.

13. The physician determined that “[t]his patient needs continued close observation until the FB

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.” Id.

14. The Plaintiff was discharged from Denver Health to the Denver Reception and Diagnostic

Center (“DRDC”) Infirmary on June 4, 2011; the Denver Health discharge record states, “no follow

up needed unless razor does not pass.” Discharge Record/Instructions, Exh. A-3, docket #106-3.

15. On Saturday, June 4, 2011, Plaintiff was transferred to the DRDC, where he was placed in

a dry cell for further monitoring. Removal from Population form, Exh. A-10, docket #106-10 at 3.

16. A “dry cell” is “designated to securely house an offender without plumbing fixtures or

plumbing fixtures that are capable of being shut off.” AR 300-06(III)(I), Facility Security - Searches

and Contraband Control, Exh. A-11, docket #106-11.

17. A “dry cell watch” is “the process of continuous observation of an offender by Custody/

Control in an effort to obtain and search an offender’s bodily wastes to determine that an offender

may have ingested/swallowed contraband or otherwise concealed contraband within his/her body.”

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Id., AR 300-06(III)(J).

18. CDOC Administrative Regulations limit the amount of time an offender can remain in a dry

cell to 72 hours. Id., AR 300-06(IV)(E)(6).

19. In the dry cell, Plaintiff was monitored regularly by clinical and security staff from June 4,

2011 at 20:00 to June 7, 2011 at 07:25. Dry Cell Observation Log, Exh. A-10, docket #106-10 at

4-8.

20. At 10:30 a.m. on June 5, 2011, clinical staff reported, “P[atien]t states no medical concerns

@ this time.” Later that day at 21:45, clinical staff also reported that no acute distress was noted.

Integrated Progress Notes, Exh. A-12, docket #106-12.

21. Similarly, on June 6, 2011, clinical staff reported the absence of medical concerns and acute

distress. Id.

22. On June 6, 2011, Dr. Gagandeep Singh saw the Plaintiff. Dr. Singh reports that Plaintiff

informed him, “now since hosp[ital] feels that he has had the razors pass thro[ugh] him – per

p[atien]t had them in his rectum the day he was Dced [discharged] from DGH and states he passed

the razors that day as he has no abd[ominal] discomfort/fever/chills/sob/ n/v/diarrohoea/HA.”

Ambulatory Health Record, June 6, 2011, Exh. A-13, docket #106-13.

23. Although Plaintiff reported being “asymptomatic,” Dr. Singh ordered an additional x-ray to

“eval[uate]” whether the foreign body “pas[s]ed.” Id.

24. That x-ray revealed a “1.3 cm density overlying the midline pelvis at the level of the lower

sacrum.” June 6, 2011 Report from Rocky Mountain Radiologists, P.C., Exh. A-14, docket #106-14.

25. The following day, June 7, 2011, another medical provider, Physician’s Assistant Chris

Owusu, saw Plaintiff. Mr. Owusu reports the Plaintiff “[c]urrently denies fever, chills, abd[ominal]

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pain, red blood per rectum, SOB, dizziness, n/v.” Mr. Owusu ordered another x-ray “for

correlation/passage” of the foreign object. Ambulatory Health Record, June 7, 2011, Exh. A-15,

docket #106-15.

26. On June 7, 2011 at 20:00, the Plaintiff was released from the dry cell watch to the general

inmate population. Incident #464740 Report, Exh. A-16, docket #106-16.

27. At the time of his release, clinical services staff examined Plaintiff and noted that he had

“zero injuries” and “zero complaints.” Clinical Services Anatomical Form, June 7, 2011, Exh. A-17,

docket #106-17.

28. The next day, on June 8, 2011, the Plaintiff’s abdomen was x-rayed again. The x-ray

revealed “[t]he radiodensity seen on 06/06/11 within or overlying the central lower pelvis is no

longer present” and “no radiodense foreign body detected.” June 8, 2011 Report from Rocky

Mountain Radiologists, P.C., Exh. A-18, docket #106-18.

29. A month later, on July 13, 2011, Plaintiff’s chest and abdomen were x-rayed again. The x-ray

revealed “[n]o evidence of ingested radiopaque foreign body.” July 13, 2011 Report from Pueblo

Radiological Group, Exh. A-19, docket #106-19.

30. On July 13, 2012, Plaintiff reported to a CDOC health provider that he swallowed pieces of

his metal inhaler. Ambulatory Health Record, July 13, 2012, Exh. A-20, docket #106-20.

31. An x-ray was taken of Plaintiff’s abdomen that day and revealed “no indication of intra[-

]abdominal pathology or foreign bodies.” Ambulatory Health Record, July 13, 2012, Exh. A-21,

docket #106-21.

32. Dona Zavislan was the warden at DRDC in June 2011. Affidavit of Dona Zavislan,

September 10, 2013 (“Zavislan Affidavit”), ¶ 4, Exh. A-22, docket #106-22.

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33. Warden Zavislan was informed of Plaintiff’s placement in a dry cell, and was updated

periodically on his condition. Id., ¶¶ 6, 12.

34. Warden Zavislan did not personally observe or interact with Plaintiff while he was in dry cell

observation. Id., ¶ 13.

35. Warden Zavislan did not review Plaintiff’s medical records at any time; rather, she relied

upon reports from clinical services for information about Plaintiff’s medical condition and

recommended courses of treatment. Id., ¶ 9.

36. Warden Zavislan was not aware of any direction from a medical provider that Plaintiff

should be returned to the hospital if he did not pass the foreign object. Id., ¶ 14.

37. Warden Zavislan’s regular practice was to consult with staff, including clinical staff, as to

the appropriate next steps when an offender is released from dry cell conditions. Id., ¶ 7.

38. Warden Zavislan follows the recommendations of clinical staff as to the medical care

offenders should receive; she cannot recall any instances in which she has overridden a

recommendation for medical treatment made by clinical staff. Id., ¶ 10.

39. Warden 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. Id., ¶ 16.

40. Clinical staff are not within the Warden’s chain of command. Id., ¶ 11. 

41. Captain Lucille Reaux was the shift commander on June 5, 6 and 7, 2011 while the Plaintiff

was held in dry cell for observation. Affidavit of Lucille Reaux, September 11, 2013 (“Reaux

Affidavit”),¶ 4, Exh. A-23, docket #106-23.

42. As a captain, Captain Reaux did not have access to Plaintiff’s medical records, and any

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information she obtained about his medical condition or course of treatment would be entirely based

on verbal reports to her from clinical staff. Id., ¶ 7.

43. Captain Reaux’s regular practice as a shift commander was to discuss an offender’s medical

status with clinical staff before releasing an inmate from dry cell observation. Id., ¶ 10.

44. Captain Reaux follows the directions of clinical staff when it comes to issues relating to

offenders’ medical care. Id., ¶ 8.

45. Captain Reaux does not recall doing anything other than following her regular practices with

regard to Plaintiff’s release from dry cell observation. Id., ¶ 11.

46. Captain Reaux was not aware of any instructions from a medical provider that Plaintiff

should be returned to a medical facility if he did not pass the foreign object. Id., ¶ 9.

47. Captain Reaux interacted with Plaintiff while he was in the dry cell, but did not observe that

Plaintiff seemed to be in pain or that he needed medical attention. Id., ¶ 6.

48. CDOC Administrative Regulations provide a grievance process for offenders to resolve a

variety of issues, including issues relating to health care concerns. See Grievance Procedure, AR

850-04(IV)(D)(1), Exh. A-24, docket #106-24.

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

denied on procedural grounds and that, in such cases, the grievance officer shall certify that the

offender has not exhausted the grievance process. Id., § (IV)(E)(3)(c)(2).

50. AR 850-04 provides that “[e]ach grievance shall address only one problem or complaint and

include a description of the relief requested.” Id., § (IV)(D)(6).

51. 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

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inside him. Grievance Form, Step 1, June 29, 2011, Exh. A-25, docket #106-25 at 3.

52. Plaintiff followed his grievance through Steps 2 and 3. Grievance Forms, Steps 2 and 3, id.

at 1-2.

53. At Step 3, the CDOC grievance officer denied Plaintiff’s grievance because he failed to

comply with the administrative regulation concerning the scope of grievances, saying that Plaintiff’s

grievance contained multiple issues. October 20, 2011 Letter from Anthony DeCesaro to Ronald

Cox, Exh. A-26, docket #106-26. As a result, the grievance officer determined that Plaintiff did not

exhaust his administrative remedies. Id.

STANDARDS OF REVIEW

I. Treatment of a Pro Se Plaintiff’s Complaint

A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not

supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory

on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations

and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably

read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor

syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the

proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see

also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188,

1197 (10th Cir. 1989)). 

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II. Dismissal under Fed. R. Civ. P. 56

Summary judgment serves the purpose of testing whether a trial is required. Heideman v.

South Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary

judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). 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, 255 (1986). The nonmoving party has the burden of showing that there are issues of material fact to be determined.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial responsibility

of providing to the Court the factual basis for its motion and identifying the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if any, which reveal that

there are no genuine issues as to any material facts, and that the party is entitled to summary

judgment as a matter of law. Id. at 323; see also Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.

2002) (“[s]ummary judgment is not proper merely because [plaintiff] failed to file a response”). 

If the movant properly supports a motion for summary judgment, the opposing party may

not rest on the allegations contained in his complaint, but must respond with specific facts showing

a genuine factual issue for trial. Hysten v. Burlington Northern and Santa Fe Ry., 296 F.3d 1177,

1180 (10th Cir. 2002); Fed. R. Civ. P. 56(e). 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). “[T]he content of summary judgment evidence must be generally admissible and . . . if that

evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require

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a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v.

Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws

all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of

Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1256 (10th Cir. 2005).

ANALYSIS

In the present motion, Defendants argue summary judgment is proper because Plaintiff failed

to exhaust his administrative remedies and, in the alternative, Defendants are entitled to qualified

immunity because no genuine issues of material fact exist demonstrating Defendants violated

Plaintiff’s Eighth Amendment rights. The Court will begin by analyzing whether Plaintiff failed to

exhaust his administrative remedies as to the remaining claim; if he properly exhausted, the Court

will proceed to determine whether Defendants are entitled to qualified immunity by examining

whether genuine issues of material fact exist as to the remaining Eighth Amendment claim. 

I. Exhaustion of Administrative Remedies 

The Prison Litigation Reform Act requires a prisoner to exhaust available administrative

remedies before suing over prison conditions. See 42 U.S.C. § 1997e(a); see also Booth v. Churner,

532 U.S. 731, 733 (2001). Because the 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 system’s grievance procedure. Jones v. Bock, 549 U.S. 199, 218 (2007) (“[I]t is the prison’s

requirements ... that define the boundaries of proper exhaustion.”); see also Howard v. Waide, 534

F.3d 1227, 1243-44 (10th Cir. 2008) (“Identifying the exact steps a prisoner must take to exhaust

administrative remedies presents ‘a choice-of-law issue,’ derived from the requirements of ‘the

prison grievance systems themselves.’”) (quoting from Kikumura v. Osagie, 461 F.3d 1269, 1282

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(10th Cir. 2006), overruled in part on other grounds as recognized in Robbins v. Oklahoma, 519

F.3d 1242, 1246-47 (10th Cir. 2008)). If a facility fails to notify inmates of the requirements for the

content of a grievance, “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, 461 F.3d at 1284.

Here, the CDOC Administrative Regulation (“AR”) concerning its grievance procedure

provides, in relevant part:

6. Each grievance shall address only one problem or complaint and include a

description of the relief requested. Problems that arise from the same incident

or set of facts shall be grieved in one grievance, even though it may involve

multiple DOC employees, contract workers or volunteers.

7. 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. All issues

and remedies contained in the original grievance must be incorporated into

each subsequent step of the grievance. Failure to renew each element of the

complaint and/or requested relief in subsequent steps shall be deemed a

waiver of those elements and/or requested remedy.

CDOC AR 850-04(IV)(D). This information certainly informs an inmate of the requirement to limit

a grievance to one complaint or problem at a time and that a substantive issue or requested remedy

may not be added at a later step. The grievance officer on October 20, 2011 informed the Plaintiff

that he improperly identified in his Step 3 grievance: “multiple issues: [sic] (medical treatment for

3 medical complaints on different dates from 5/28/11 to 6/29/11: chest pains, ingested razors, sore

throat), and co-pay issues regarding all medical complaints.” October 20, 2011 Letter, Exh. A-26,

docket #106-26. In fact, a comparison of the grievances, Steps 1-3, reveals the following:

Step 1: Plaintiff reports he ingested 2 razor blades he believes were “implanted” into

cookies on May 28, 2011, he “declared a medical emergency” that night and was

seen by Nurse Doug who claimed Plaintiff may have bit himself, but when the

bleeding continued, Plaintiff “declared another medical emergency” at 2:00 p.m. the

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next day and he was taken to the hospital at which he spent a week after doctors

discovered the ingestion of 2 razor blades. Plaintiff notes that the hospital staff

“reported one (1) razor is still inside.” As remedies, Plaintiff seeks immediate lab

work to test for infectious diseases; immediate reimbursement of “medical

emergency fee (x2)”; implementation of a policy to prevent food tampering; and

monetary compensation for damages incurred.

Step 2: Plaintiff believes monetary compensation is justified as he was a “victim” of

food tampering. He claims he declared emergencies on May 28 and May 29, 2011

as a result of spitting up blood and stomach pain. Plaintiff further complains he was

placed in dry cell for 72 hours then released back to general population with a razor

blade still in his system. As remedies, Plaintiff seeks immediate reimbursement of

“medical fees (x3)”; the implementation of a policy to prevent food tampering;

monetary compensation for damages incurred; and copies of “all reports and x-rays

conducted that has [sic] to do with incident.”

Step 3: Plaintiff asserts that “on the 28th of June I was charged and again on the 29th

of June and then it says since I was dry celled in the Infermary [sic] I was charged

for that also. I’m addressing the incident of callous indifference where I was a victim

of food tampering. Records show that (2) razors were x-rayed showing in my

stomach. Again I was a victim of a crime not a joke.” As remedies, Plaintiff seeks

immediate reimbursement of “medical charge (x3) stemming from D.R.D.C.”;

monetary compensation for damages incurred; copies of “medical reports of razor

incident and x-ray results”; and the implementation of a policy to prevent food

tampering.

Grievance Forms, Exh. A-25, docket #106-25. Although the single theme of his ingestion of razor

blades occurs in all three grievances, it appears that in Step 1, Plaintiff complains that his food was

tampered with and he was released from the hospital with a razor blade still in his system; in Step

2, he complains that he was released from the facility infirmary “back to general population” with

a razor blade still in his system; and in Step 3, he complains that he was charged expenses for

medical care. While the Court is unclear about Mr. DeCesaro’s referral to Plaintiff’s complaints of

multiple medical issues such as “chest pains” or a “sore throat,” which are not identified in the

records provided by the Defendants, the Court agrees that Plaintiff improperly addressed more than

one problem or complaint in his grievance and added substantive issues in later steps. See CDOC

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AR 850-04(IV)(D)(6) & (7). 

Plaintiff argues that prison officials did not follow AR 850-04(IV)(C)(2) by failing to ask

him to cure procedural deficiencies. However, the regulation also states: “If the procedural error

cannot be corrected or if the offender refuses to correct the grievance, then it shall be ... denied on

procedural grounds.” CDOC AR 850-04(IV)(C)(2). Mr. DeCesaro concluded that the “time

constraints outlined in the regulation had expired”; thus, the procedural errors could not be

corrected. Further, the regulation provides that at Step 3, 

The grievance officer may deny the grievance on procedural grounds without

addressing the substantive issues, if the grievance is incomplete, inconsistent with

a former step, incomprehensible, illegible, requests relief that is not available, fails

to request relief, or in any other way fails to comply with the provisions of this

regulation. 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.

CDOC AR 850-04(IV)(E)(3)(c) (emphasis in original). 

The Plaintiff fails to demonstrate any genuine issues of material fact with respect to whether

he failed to exhaust administrative remedies. Accordingly, the Court recommends that the District

Court find the Plaintiff failed to follow the prison’s grievance procedure and, thus, failed to exhaust

his administrative remedies as to his Eighth Amendment deliberate indifference claim.

II. Qualified Immunity 

Should the District Court disagree with the recommendation concerning exhaustion of

administrative remedies, this Court recommends it find the existence of no genuine issues of

material fact as to whether Defendants violated Plaintiff’s Eighth Amendment rights.

Defendants assert that they are entitled to qualified immunity for claims against them in their

individual capacities. Qualified immunity protects from litigation a public official whose possible

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violation of a plaintiff’s civil rights was not clearly a violation at the time of the official’s actions.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is an entitlement not to stand trial or face

the other burdens of litigation. Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal

quotations and citations omitted). The privilege is an immunity from suit rather than a mere defense

to liability. Id. When a defendant asserts the defense of qualified immunity, the burden shifts to the

plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.

2009). “The plaintiff must demonstrate on the facts alleged both that the defendant violated his

constitutional or statutory rights, and that the right was clearly established at the time of the alleged

unlawful activity.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)). 

The Supreme Court has discarded a review process that required courts to examine the

elements of qualified immunity sequentially, first considering whether a right had been violated, and

then second - if the court concluded a right had been violated - whether that right was clearly

established at the time of the alleged violation. Pearson, 555 U.S. at 232-44. Pearson retired this

process, instead affording courts the discretion to decide “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; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir.

2009).

In this case, the Court will begin by analyzing Plaintiff’s remaining claim to determine

whether Plaintiff has established genuine issues of material fact as to a violation of his rights; if so,

the Court will proceed to determine whether Plaintiff’s rights were clearly established at the time

of the violation. 

Under the Eighth Amendment, prisoners are constitutionally entitled to “humane conditions

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of confinement guided by ‘contemporary standards of decency.’” Penrod v. Zavaras, 94 F.3d 1399,

1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prisoners state a claim

of cruel and unusual punishment under the Eighth Amendment by alleging prison officials

demonstrated “deliberate indifference to a prisoner’s serious illness or injury,” or that prison

officials “have, with deliberate indifference,” involuntarily exposed a prisoner to conditions “that

pose an unreasonable risk of serious damage to [the inmate’s] future health.” Helling v. McKinney,

509 U.S. 25, 35 (1993); Estelle, 429 U.S. at 105. 

Plaintiff must meet both the objective and subjective components constituting the test for

Eighth Amendment deliberate indifference. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.

2006). The objective component is met “if the harm suffered is ‘sufficiently serious’ to implicate

the Cruel and Unusual Punishment Clause.” Id. (quoting Kikumura, 461 F.3d at 1291). “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 v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting Hunt v. Uphoff, 199

F.3d 1220, 1224 (10th Cir. 1999)). “Moreover, a ‘delay in medical care only constitutes an Eighth

Amendment violation where the plaintiff can show the delay resulted in substantial harm.’” Mata

v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th

Cir. 2001)). The substantial harm requirement may be satisfied by lifelong handicap, permanent

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

(internal quotations omitted). A delay in medical treatment that is unintentional or unavoidable,

even though it may result in the inmate suffering additional harm, is not actionable. See, e.g.,

Estelle, 429 U.S. at 104-05 (“indifference is manifested . . . by prison guards in intentionally denying

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or delaying access to medical care”) (emphasis in original).

The subjective component is met if the plaintiff demonstrates that a defendant “knew he

faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to

abate it.” Callahan, 471 F.3d at 1159 (quoting Kikumura, 461 F.3d at 1293). The subjective

component requires an “inquiry into a prison official’s state of mind when it is claimed that the

official has inflicted cruel and unusual punishment.” Kikumura, 461 F.3d at 1293 (quoting Farmer

v. Brennan, 511 U.S. 825, 838 (1994)). To prove a claim of deliberate indifference predicated on

the delay in providing medical care, an inmate must show: (i) that he suffered from a serious medical

need; (ii) that medical care to address that need was unnecessarily delayed; (iii) that the delay

manifested the defendant’s subjective disregard for the inmate’s needs; and (iv) that the delay caused

the inmate to suffer substantial harm, whether in the form of significant pain or permanent physical

injury. Grassi v. Corr. Corp. of Am., No. 07-cv-00944-MSK, 2008 WL 5172154, at *5 (D. Colo.

Dec. 9, 2008) (citing Estelle, 429 U.S. at 104-05).

For his remaining Claim 2(b), Plaintiff asserts that Captain Reaux and Warden Zavislan

subjected him to cruel and unusual punishment when they failed to return Plaintiff to the hospital

after one razor blade remained in his system. (Amended Complaint, docket #14 at 8.) As previously

noted, x-rays of Plaintiff’s stomach were taken at the hospital revealing that he had ingested two

razor blades. While one blade apparently passed through Plaintiff during his hospital stay, a doctor

there ordered that Plaintiff be released provided he could be closely monitored and x-rayed to

determine whether the other blade had passed. Accordingly, Plaintiff’s condition at that time

constitutes a sufficiently serious medical need as “one that has been diagnosed by a physician as

mandating treatment.” Sealock, 218 F.3d at 1209. Thus, the Court finds that Plaintiff has properly

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demonstrated a sufficiently serious medical need to meet the objective component of Claim (2)(b)

against Captain Reaux and Warden Zavislan.

With respect to the subjective component, Plaintiff must demonstrate that Captain Reaux

and Warden Zavislan acted with deliberate indifference to his serious medical need. See Farmer,

511 U.S. at 834. A prison official may be held liable when he acts with deliberate indifference “only

if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it.” Id. at 847. The official both must be aware of facts from

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

the inference. Id. at 837. The deliberate indifference standard “is manifested by prison doctors in

their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access

to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S.

at 104-05 (emphasis added). This conclusion does not mean, however, that every claim by a

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

Amendment. Id. at 105. An accident, although it may produce added anguish, is not on that basis

alone to be characterized as wanton infliction of unnecessary pain. Id.

Here, the facts demonstrate that Captain Reaux was aware that Plaintiff had ingested two

razor blades, was taken to and treated at the hospital, and was placed in dry cell observation to

monitor the passing of at least one razor blade. See Defendant Reaux’s Responses to Plaintiff’s First

Request for Admissions, June 11, 2013, ¶¶ 4-5, docket #110-1 at 44. Warden Zavislan was aware

that Plaintiff had ingested razor blades, she was kept updated during the dry cell observation, and

she cannot recall whether she knew that Plaintiff still had a razor blade in his system when he was

released into the general population on June 7, 2011. See Defendant Zavislan’s Responses to

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Plaintiff’s First Request for Admissions, June 11, 2013, ¶¶ 5, 11, docket #110-1 at 38, 40. However,

the facts demonstrate, and Defendants attest, that they were required to release the Plaintiff from dry

cell observation after 72 hours by CDOC AR 300-06(IV)(E)(6). As to whether he was ordered to

be returned to the hospital after dry cell, there is nothing in the record demonstrating that Plaintiff

was discharged from the hospital with such instruction; rather, the hospital physician specifically

instructed that Plaintiff may be released from the hospital as long as he was monitored closely and

x-rayed every day to determine whether the razor blade had passed. See Progress Record, Exh. A-9

to motion, docket #106-9; see also Discharge Record/Instructions, Exh. A-3, docket #106-3 (“no

follow up needed unless razor does not pass”). 

Plaintiff himself admits that he was x-rayed “every day” during dry cell (Plaintiff’s

Declaration, June 3, 2012, docket #110 at 64), and the record reveals that Plaintiff was x-rayed the

day after he was released from dry cell (June 8, 2011 Report from Rocky Mountain Radiologists,

P.C., Exh. A-18, docket #106-18). It was from this last x-ray that a radiologist determined the razor

blade was “no longer present.” See id. (“[t]he radiodensity seen on 06/06/11 within or overlying the

central lower pelvis is no longer present” and “no radiodense foreign body detected.”). A month

later, after Plaintiff complained to the facility clinical staff, he was x-rayed again, and again the xray revealed “[n]o evidence of ingested radiopaque foreign body.” July 13, 2011 Report from

Pueblo Radiological Group, docket #106-19.

Importantly, Plaintiff fails to demonstrate he suffered any, much less substantial, harm as a

result of being released from dry cell to the general population with a razor blade in his system. The

record indicates that Plaintiff complained of no health problems during dry cell (see Integrated

Progress Notes, Exh. A-12, docket #106-12), and the clinical staff who visited him during that time

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concluded that Plaintiff “states he passed the razors that day as he has no abd[ominal]

discomfort/fever/chills/sob/ n/v/diarrohoea/HA.” Ambulatory Health Record, June 6, 2011, Exh.

A-13, docket #106-13. On the day Plaintiff was discharged from dry cell, clinical staff found that

Plaintiff “[c]urrently denies fever, chills, abd[ominal] pain, red blood per rectum, SOB, dizziness,

n/v.” Ambulatory Health Record, June 7, 2011, Exh. A-15, docket #106-15.

The Defendants attest that based upon these findings and the clinical staff’s recommendation,

Plaintiff was released from dry cell into the general population on June 7, 2011. Zavislan Affidavit,

¶¶ 7, 10, Exh. A-22, docket #106-22; Reaux Affidavit,¶¶ 7, 10, Exh. A-23, docket #106-23. Plaintiff

fails to rebut the records showing that he suffered no harm upon his release into general population

on June 7, 2011 and fails to rebut Defendants’ testimony concerning their reliance on clinical staff’s

recommendations. Thus, the Court must conclude that Plaintiff fails to demonstrate genuine issues

of material fact concerning whether Defendants knew they faced a substantial risk of harm to

Plaintiff and disregarded that risk.

Although Plaintiff speculates that the sore throat and mouth sores he suffered in late Juneearly July 2011 were the result of swallowing the razors, there is nothing in the record demonstrating

that ingestion of the razors on May 28, 2011 caused such problems. In fact, when the Plaintiff

visited the facility clinic on June 25, 2011 to complain of a sore throat, he told the staff that he felt

the same as he had the year before when he suffered strep throat. Ambulatory Health Record, June

25, 2011, docket #110 at 53. Plaintiff was treated with antibiotics for an “acute pharyngitis”

(Ambulatory Health Records, June 27-29, 2011, docket #110 at 54-56), which resolved a few weeks

later (Ambulatory Health Record, July 18, 2011, docket #110 at 62). As for the mouth sores,

Plaintiff had a dental examination on July 5, 2011, at which the doctor determined that the sores

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were healing and “appear[ed] herpetic in origin.” Ambulatory Health Record, July 5, 2011, docket

#110 at 58. There is no evidence that a doctor or other health provider determined that his mouth

and throat issues were caused by ingestion of the razor blades or having a blade in his system when

he was released into general population on June 7, 2011.

Thus, the Plaintiff has failed to demonstrate any issues of material fact concerning whether

Defendants Captain Reaux and Warden Zavislan disregarded a “substantial risk of serious harm”

to Plaintiff by releasing him to general population upon completion of his three-day drycell period.

See Farmer, 511 U.S. at 847. Accordingly, the Court finds that Plaintiff has not met the subjective

component of his Eighth Amendment claim against Captain Reaux and Warden Zavislan and

recommends that the District Court grant summary judgment in favor of the Defendants as to

Plaintiff’s remaining claim. 

III. Damages

Defendants claim that Plaintiff has failed to demonstrate a physical injury to support his

claims seeking damages for pain and suffering as required by 42 U.S.C. § 1997e. Should the District

Court disagree that summary judgment is proper as to Plaintiff’s Eighth Amendment claim, the

Court will proceed to determine whether Plaintiff may seek compensatory damages in this case.

“While claims for mental and emotional distress are cognizable under § 1983, under [42

U.S.C.] § 1997e(e) ‘such a suit [by a prisoner] cannot stand unless the plaintiff has suffered a

physical injury in addition to mental or emotional harms.’” Lawson v. Engleman, 67 F. 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) (quoting Perkins,

165 F.3d at 807). “[A] prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered

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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). 

As set forth above, the Plaintiff has failed to show he suffered a physical injury as a result

of being released from dry cell into the general population by the Defendants in this case. Therefore,

the Court recommends finding that Plaintiff may not seek compensatory damages against

Defendants for his remaining Eighth Amendment claim.

CONCLUSION 

The Court concludes that Plaintiff failed to exhaust his administrative remedies as to his

remaining Claim 2(b) by failing to follow the applicable facility regulation. In the alternative, the

Court finds Plaintiff has failed to demonstrate genuine issues of material fact as to the subjective

component of his Eighth Amendment claim and, thus, Captain Reaux and Warden Zavislan are

entitled to qualified immunity as to Claim (2)(b). Accordingly, the Court RECOMMENDS that

Defendants’ Motion for Summary Judgment [filed September 12, 2013; docket #106] be

GRANTED as set forth herein. 

Respectfully submitted at Denver, Colorado, this 12th day of November, 2013.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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