United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE
Tom Stanley, Jr., a state prisoner appearing pro se and in
forma pauperis, has filed a civil rights complaint pursuant
to 42 U.S.C. § 1983 alleging deliberate indifference to
his pain (Compl.) [Doc. No. 1]. United States District Judge
Stephen P. Friot has referred the matter for proposed
findings and recommendations consistent with 28 U.S.C. §
636(b)(1)(B) and (C). Defendant Robert Balogh filed the
Court-ordered Special Report [Doc. No. 21] and a Motion for
Summary Judgment and Brief in Support (Motion) [Doc. No. 36].
Plaintiff thereafter filed three documents challenging the
Motion, two entitled “Plaintiff's Respons[e] to
Defendant[']s Summary Judgment” [Doc Nos. 37, 38]
and one simply entitled “Affidavit of Plaintiff”
(Pl.'s Aff.) [Doc. No. 41]. For the reasons set forth
below, it is recommended that Defendant's Motion be
is a state prisoner, who at the time he filed his Complaint,
was confined at the Joseph Harp Correctional Center.
See Compl. at 4. Plaintiff says he is a bone cancer
patient who received opioid medication for his pain until
Defendant cancelled his pain medication, resulting in severe
pain. Id. at 6-7. Plaintiff alleges his cancer
progressed such that he “was no longer able to walk due
to the pain.” Id. at 7.
Analysis of Defendant's Summary Judgment
Balogh seeks summary judgment on two grounds: Plaintiff's
nonexhaustion of administrative remedies and failure to
establish deliberate indifference under the Eighth Amendment.
See Motion at 7-13. For the reasons set forth below,
it is recommended that the Court grant Defendant's Motion
on both grounds.
Standard for Review
Rule 56 of the Federal Rules of Civil Procedure, the court
shall grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323 (1986). Once a moving
party shows it is entitled to judgment as a matter of law,
the burden shifts to the nonmoving party to point out the
specific facts that create disputed factual issues. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The nonmoving party must present some evidence, other
than its initial pleadings, to show that there is more than
just a “metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); see also
Celotex, 477 U.S. at 324 (quoting Rule 56(e)
(“Rule 56(e) . . . requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by [other
evidence] designate ‘specific facts showing that there
is a genuine issue for trial.'”).
defeat a motion for summary judgment, evidence must be based
on more than mere speculation, conjecture, or surmise.
See Bones v. Honeywell Int' l, Inc., 366 F.3d
869, 875 (10th Cir. 2004). Conclusory allegations will not
create a genuine issue of material fact defeating a summary
judgment motion. See L&M Enter. Inc. v. BEI Sensors
& Systems Co., 231 F.3d 1284, 1287 (10th Cir. 2000).
In evaluating a motion for summary judgment, a district court
must consider the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences from those
facts in favor of that party. See Thomson v. Salt Lake
Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
“However, because at summary judgment we are beyond the
pleading phase of the litigation, a plaintiffs version of the
facts must find support in the record: more specifically, as
with any motion for summary judgment, when opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts.” Id. (quotations, brackets, and
The Undisputed Facts
to Defendant, these facts are undisputed:
• Plaintiff was accused of non-compliance with pain
medication on December 15, 2015.
• Defendant Balogh thereafter changed Plaintiffs pain
medication prescriptions “to pain medication less