govinfo:USCOURTS-ksd-5_22-cv-03282-6

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
MICHAEL A. SCRIVEN, 
 
 Plainti
ff, 
 
 
 vs. Case No. 22-3282-EFM-RES 
 
VITALCORE HEALTH 
STRATEGIES, LLC (named as “Vital Core, 
LLC”), et al., 
 
 De
fendants. 
 
 
 
 
 
MEMORANDUM AND ORDER 
 
Pro se Plaintiff Michael Scriven brings this action against Defenda nts VitalCore Health 
Strategies, LLC (incorrectly na med as “Vital Core LLC”), Jennife r Ehrlich, Tracy Staley, Dr. 
Harold Stopp, Ryan Fickle, and Dr. John Tomarchio (incorrectly named as “Demarco”) for alleged 
violations of his constitutional rights while in custody at the Sedgwic k County Jail (“SCJ”). 
Specifically, Plaintiff asserts that Defendants violated his Fourteenth Amendment rights when they 
denied him narcotic pain medication for his ch ronic health conditions. This matter comes before 
the Court on Defendants’ Motion for Summary Judgment (Doc. 130) and Plaintiff’s Motion to 
Declare Defendants’ Expert Report Inadmissible (Doc. 147).1 For the following reasons, the Court 
 
1 Plaintiff filed a second Motion to Declare Defendants’ Expert Report Inadmissible at Doc. 155. However, 
this second motion appears to be a typed copy of the Motion to Declare Defendant’s Expert Report Inadmissible at 
Doc. 147. Thus, the Court will address these motions as one. 

 
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grants Defendants’ Motion for Summary Judgment and denies Plaintif f’s Motion to Declare 
Defendants’ Expert Report Inadmissible. 
I. Factual and Procedural Background 2 
A. Plaintiff’s Medical Care for His Chronic Conditions 
 Plaintiff was incarcerated in SCJ as a pret rial detainee in October 2020. He suffers from a 
number of chronic health conditions, including: (1) a prosthetic pelvis; (2) plates in his right and 
left acetabulum; (3) a rod in his right femur; (4) plates in his right rib; (5) a traumatic brain injury; 
(6) neuropathy/paralysis; (7) tendinopathy; (8) arthritis; (9) severe joint degenerative disease; (10) 
dystrophic calcification; and (11) heterotropic ossification. Not all of Plaintiff’s conditions were 
diagnosed before he was incarcerated. Some were the result of Plaintiff’s altercations with other 
inmates at SCJ. 
 From the time of his incarceration through August 2021, Plaintiff tried several different 
pain medications for his health conditions. Plain tiff, however, repeatedly complained about his 
pain, and so on August 16, 2021, Defendant Dr. St opp prescribed him tramadol. In November 
2021, one of Plaintiff’s healthcar e providers, Travis Nickelson, documented that Plaintiff was 
experiencing soft tissue calcification disease. He consulted with Dr. Stopp and both agreed that 
Plaintiff’s tramadol prescrip tion should be increased to th ree times a day. Plaintiff was 
subsequently sent to outside orthopedic specialis ts, one of whom increased Plaintiff’s dosage of 
tramadol from 50 mg to 100 mg three times a day. Nickelson approved the specialist’s 
 
2 In accordance with summary judgment procedure, the facts are set forth in the light most favorable to the 
nonmoving party. 

 
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recommendation. Thus, at the time of the events at issue here, Plaintiff was receiving the increased 
dosage of tramadol three times a day. 
 In July 2022, Defendant VitalCore becam e the medical provider for SCJ. Plaintiff 
continued to receive tramadol until September 6, 2022, when he was taken off the medication and 
offered Tylenol and ibuprofen instead. Plaintiff complained to Defendant Tracey Staley, an 
advanced practice registered nurse for VitalCore, about the effect of stopping the medication on his 
health and the fact that NSAIDs, such as ibuprofen, hurt his stomach. That same day, Nurse Staley 
consulted with Dr. Stopp and Defendant Ryan Fi ckle, the Health Servic es Administrator for 
VitalCore. They agreed that Plaintiff should stop taking tramadol but that he should be tapered off 
the medicine to decrease withdrawal side effects. Nurse Staley then offered Plaintiff Tylenol and 
ibuprofen with famotidine to prevent any gastrointestinal issues. 
 On or about September 22, 2022, Plaintiff met with Defendant Ehrlich, Senior Vice 
President of Operations for VitalCore, and De fendant Dr. Tomarchio, A ssistant Chief Medical 
Officer for VitalCore. They expl ained why he was being taken o ff tramadol. Specifically, they 
described the effects of opioids on dopamine receptors in the brain and their impact on individuals 
with a history of substance abuse, especially when taken long-term. Plaintiff was previously treated 
for substance abuse due to the use of cocain e and methamphetamines. Unwilling to accept their 
reasoning, Plaintiff became argu mentative and insisted he be allowed tramadol for pain 
management. Instead of acquiescing to Plaintiff’s demands, Ehrlich and Dr. Tomarchio told 
Plaintiff that they would discus s adding a muscle relaxer for his muscle spasms with Plaintiff’s 
provider. 
 Plaintiff continued to co mplain about his lack of tr amadol in November 2022. On 
November 8, 2022, Nurse Staley met with Plaintiff to discuss possible bone growth into his rectum 

 
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and Plaintiff’s continued requests for tramadol. Nurse Staley’s notes from that meeting state that 
Plaintiff refuses to take NSAIDs, Tylenol, or famotidine because they are not effective and hurt his 
liver or kidneys. She noted, however, that Plainti ff’s labs did not indicate a liver or kidney injury. 
She also noted that Plaintiff refused to take Cymbalta or nortriptyline because he was previously 
informed it would cause side ef fects on his traumatic brain inju ry. Again, however, there was no 
evidence of this in Plaintiff’s record. Nurse Staley reminded Plaintif f of “company policy, 
provider’s right not to prescribe opioids, his pre-disposition to substance abuse and Dr. Tomerchio 
[sic] recommendations.” She further noted that Plaintiff was prescribed alternative evidence-based 
care for his pain, but he continues to refu se medication with “no objective findings for 
contraindication.” 
 Nurse Staley met with Plaintiff again on November 15, 2022. Her notes regarding that 
meeting indicate that she had been discussing th erapeutic options with Dr. Tomarchio, and she 
conveyed these options to Plaintif f. She also offered Plaintiff an alternative anti-depressant, 
Effexor, which he declined. Plaintiff continued to decline ibuprofen and famotidine, asserting that 
the famotidine caused bloating and discomfort. Plaintiff agreed to try Celebrex on a trial basis. 
 In January 2023, Dr. Curt Meinecke became Pl aintiff’s medical provider and authorized a 
new tramadol prescription. Plaintiff continued to receive tramadol from Dr. Meinecke until he was 
transferred to state prison in April 2025. 
B. The Litigation 
 Plaintiff filed this suit on October 31, 2022. He asserts a claim under 42 U.S.C. § 1983 for 
violation of his Fourteenth Am endment rights. He alleges that Defendants were deliberately 
indifferent to his serious medical needs when they refused to fill his tramadol prescription in favor 
of other less efficacious pain medications. He sues Defendant Nurse Staley in her official capacity 

 
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and Defendants Ehrlich, Dr. Tomarchio, Dr. Stopp and Fickle in their individual capacities. 
Plaintiff also asserts a Monell3 claim against Defendant VitalCore, which alleges that VitalCore 
implemented a policy prohibiting inmates at SCJ from receiving narcotic pain medication. 
 During discovery, Defendants retained Dr. Thomas Fowlkes to provide an opinion 
regarding the medical necessity of the care and treatment requested by Plaintiff. Dr. Fowlkes 
opined: 
In summary, each of these providers used appropriate professional medical 
judgment to formulate a trea tment plan for a difficult patient with chronic pain 
syndrome who did not have any pathology that could be reversed with surgery or 
other intervention. Plaintiff was not going to be cured of his heterotopic ossification 
or the other consequences of his prior tr aumas. He was going to have to learn to 
live with his chronic pain. Many providers have determined that the risks of chronic 
opioid therapy outweigh the benefits in these types of patients. 
 
Dr. Fowlkes also opined on Plaintiff’s prior drug addiction stating: 
 
Plaintiff had a past medical history that included SUD [substance abuse disorder] 
of at least cocaine. Persons with a history of SUD are at a particularly heightened 
risk of subsequent addictio n potential if prescribed chronic opiates. The medical 
literature is clear that use of chronic opioid therapy is relatively contraindicated in 
patients with a history of SUD. Particular caution should be used before prescribing 
any opiates to individuals with a history of SUD. 
 
Finally, Dr. Fowlkes discu ssed Plaintiff’s allegations as to hi s deliberate indifference claim and 
concluded: “It is an appropriate practice in a correctional setting, as in other settings, to limit the 
amount and duration of opioid medi cations given for chronic non-cance r pain. It is especially so 
given the additional security risks in a correctional environment.” 
 Plaintiff did not produce an e xpert witness report under Fede ral Rule of Civil Procedure 
26(a)(2)(B). In his Rule 26 Retained Experts and Disclosures he states “[t]he plaintiff is unable to 
 
3 Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). 

 
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retain any experts so no report is needed. There is going to be medical professionals who testify 
on behalf of the plaintiff including defendants.” 
 Defendants have moved for summary judgm ent on Plaintiff’s § 1983 claim, to which 
Plaintiff filed a response. Additionally, Plaintif f filed a Motion to Declare Defendants’ Expert 
Report Inadmissible. These motions are ripe for the Court’s ruling. 
II. Plaintiff’s Motion to Declare De fendants’ Expert Report Inadmissible 
A. Legal Standard 
Rule 702 of the Federal Rules of Evidence gove rns the admissibility of expert testimony. 
Under this rule, the Court must first “determine whether the expert is qualified by knowledge, skill, 
experience, training, or edu cation to render an opinion.” 4 If so, then relevant expert opinion 
testimony is admissible if: (1) su ch testimony is based upon sufficien t facts or data; (2) it is a 
product of reliable principles a nd methods; (3) the witness applie d the principles and methods 
reliably to the facts of the case; and (4) the testimony is helpful to the trier of fact. 5 As these 
requirements demonstrate, the Court is charged as a gatekeeper to admit only expert testimony that 
is relevant and reliable. 6 This is a flexible inquiry specific to the facts of the case at hand. 7 The 
burden is on the party offering the expert testimony to show that it is admissible. 8 That party, 
 
4 Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1282 (10th Cir. 2018) (internal quotation marks and citation 
omitted). 
5 Fed. R. Evid. 702. 
6 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). 
7 Id. at 594; see also Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 150 (1999) (rejecting formulaic 
application of reliability factors discussed in Daubert because “[t]oo much depends upon the particular circumstances 
of the particular case at issue”). 
8 United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (citation omitted). 

 
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however, “need not prove that the e xpert is undisputably correct or that the expert’s theory is 
‘generally accepted’ in the scientific community [, only] that the method employed by the expert 
in reaching the conclusion is scientifically sound and that the opinion is based on facts which 
sufficiently satisfy Rule 702’s reliability requirements.”
9 
The Court may, but is not required to, conduct a Daubert hearing to fulfill this role.10 Here, 
neither party has requested a Daubert hearing, and after reviewing the parties’ briefs, the Court 
concludes that the Motion can be decided without a Daubert hearing. 
B. Analysis 
 Plaintiff asserts eight arguments as to why the Court should declare Dr. Fowlkes’ expert 
report inadmissible. First, Plainti ff argues that Dr. Fowlkes is not qualified because he is not an 
“orthopedic,” “nerve specialist,” or “pain management specialist.” However, Dr. Fowlkes is not 
opining on the type of pain medication suitable for Plaintiff’s chronic pain. Instead, he is opining 
on the appropriate standard of ca re for managing chronic pain in a correctional setting, and Dr. 
Fowlkes’s resume shows that he is qualified to opine on this issue. He is a “correctional medicine 
physician with approximately 25 years of experience,” board certified in addiction medicine, and 
a Certified Correctional Healthca re Professional-Physician. Because Dr. Fowlkes’s expertise is 
directly relevant to the issue at hand, the Court finds Dr. Fowlkes qualified to render an opinion in 
this case. 
 
9 Windham v. Circuit City Stores, Inc. , 420 F. Supp. 2d 1206, 1211 (D. Kan. 2006) (quoting Mitchell v. 
Gencorp. Inc., 165 F.3d 778, 781 (10th Cir. 1999)); see also Foster v. USIC Locating Servs., LLC, 2018 WL 3757567, 
at *1 (D. Kan. Aug. 7, 2018) (“[R]ejection of expert testimony is the exception rather than the rule.”) (citing Fed. R. 
Evid. 702 advisory committee’s notes). 
10 In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig. , 2020 WL 1164869, at 
*3 (D. Kan. Mar. 10, 2020) (citing Goebel v. Denver & Rio Grande W. R.R. Co. , 215 F.3d 1083, 1087 (10th Cir. 
2000)). 

 
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 Second, Plaintiff argues that Dr. Fowlkes’s method is not a sound medical opinion because 
the x-ray images he looked at are covered in gray and white static. Although these images may be 
low quality, Dr. Fowlkes reviewed the entire medi cal record, including the official radiology 
reports associated with the x-ra y images. Thus, contrary to Plai ntiff’s argument, Dr. Fowlkes’s 
methodology is not flawed, and the Court will not declare it inadmissible on this basis. 
 Third, Plaintiff argues th at Dr. Fowlkes improperly re lied upon third-party hearsay 
statements in Plaintiff’s medical records when cr afting his expert report. However, an expert’s 
reliance on hearsay does not necessa rily render the expe rt’s opinion unreliable. Federal Rule of 
Evidence 703 permits an expert to base an opinion on facts “that the expert has been made aware 
of or personally observed,” even if those facts ar e inadmissible, so long as they are of a type 
reasonably relied upon by expert s in the particular field. 11 Experts in corre ctional medicine 
reasonably rely upon medical reco rds to form opinions about the standard of care. Thus, Dr. 
Fowlkes’s use of Plaintiff’s medical records does not render his report unreliable. 
 Fourth, Plaintiff claims that Dr. Fowlkes improperly diagno sed Plaintiff with a substance 
abuse disorder. Plaintiff argues that Dr. Fowlkes did not perform the 11-prong test in the American 
Psychiatric Association’s Diagnostic and Statistical Manual of Disorders to determine whether he 
did, in fact, have a substance a buse disorder. This argument misre presents Dr. Fowlkes’s report. 
Dr. Fowlkes did not make a new diagnosis regarding substance a buse. Instead, he relied on 
Plaintiff’s own reported history and prior medical records to document that Plaintiff had a 
 
11 Fed. R. Evid. 703; United States Fid. & Guar. Co. v. Sulco, Inc ., 171 F.R.D. 305, 307 (D. Kan. 1997) 
(citation omitted). 

 
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substance abuse disorder in the past. An expert is not required to have first-hand knowledge of the 
facts or conduct his own diagnostic exam to form an opinion on the patient’s history.12 
 In his fifth argument, Plaintiff asserts that Dr. Fowlkes falsely denied the existence of a 
VitalCore policy in his report. Plaintiff asserts that the medical records show that Defendant Staley 
used a VitalCore policy to deny Plaintiff’s medi cation. In response, Defendants argue that Dr. 
Fowlkes did not deny the existenc e of a VitalCore policy, instea d he opined that he saw no 
VitalCore policy or procedure that precluded the use of opioid medication. This is a factual dispute 
between the parties. Plaintiff’s disagreement with Dr. Fowlkes’s conclusi on in his expert report 
goes to the weight of Dr. Fowlkes’s testimony. It is not grounds for exclusion. 
 In his sixth and seventh arguments, Plaintiff disagrees with two different factual statements 
in Dr. Fowlkes’s report. In his sixth argument, Plaintiff takes i ssue with Dr. Fowlkes’ statement 
that Plaintiff fractured his hand after hitting a door. And in his seventh argument, Plaintiff argues 
that Dr. Fowlkes should have provided the name of the physicians who previously terminated 
Plaintiff as patient due to his behavior and demeanor. These are both tangential factual issues that 
are irrelevant to the issues before the Court. Plaintiff’s disagreement with Dr. Fowlkes’s statements 
does not render Dr. Fowlkes’ opinion on the central issues of the case unreliable. 
 In Plaintiff’s final argument, he claims that Dr. Fowlkes relied on medical records that were 
falsified by Defendant Staley. Plaintiff claims that on November 15, 2022, Nurse Staley created a 
record at a time later than her chart reflects. This is a misreading of the record. The note Dr. 
 
12 See United States v. Tsosie , 791 F. Supp. 2d 1099, 1110 (D.N.M. 2011) (“[E]xperts are not required to 
have first hand knowledge, because expert witnesses do not need to have personal knowledge of the underlying facts; 
they may testify to opinions based on facts perceived by or made known to the expert at or before the hearing.” 
(internal quotation marks and citation omitted)). 
. 

 
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Fowlkes relies upon in Plaintiff’s medical record specifically states “LATE ENTRY: Pt seen last 
week 11/8/22 . . . .” Although the note was en tered on November 15, 2022, it reflects that the 
encounter occurred on November 8, 2022. Thus, the medical record was not falsified. In any event, 
criticisms regarding the medical providers or the databases on which the expert relies go to the 
weight, and not the admissibili ty of the expert’s opinion.
13 Accordingly, this argument is not an 
adequate basis under which the Court may declare Dr. Fowlkes’s report inadmissible. 
 Overall, Plaintiff fails to present a credible challenge to Dr. Fowl kes’s qualifications or 
methodology. His arguments mostly amount to a disagreement wi th underlying evidence. This 
disagreement goes to the weight of the testimon y, not its admissibility, a nd is the proper subject 
of cross-examination. Accordingl y, the Court denies Plaintiff’s Motion to Declare Defendants’ 
Expert Report inadmissible. 
III. Defendants’ Motion for Summary Judgment 
A. Legal Standard 
Summary judgment is appropriate if the moving party demonstrates that there is no genuine 
issue as to any material fact, and the movant is entitled to judgment as a matter of law.14 A fact is 
“material” when it is essential to the claim, a nd issues of fact are “g enuine” if the proffered 
evidence permits a reasonable jury to decide the issue in either party’s favor.15 The movant bears 
the initial burden of proof and must show the lack of evidence on an essential element of the 
 
13 McGraw v. Cobra Trucking, Inc., 569 F. Supp. 3d 1089, 1101 (D. Colo. 2021). 
14 Fed. R. Civ. P. 56(a). 
15 Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006). 

 
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claim.16 If the movant carries its initial burden, the nonmovant may not simply rest on its pleading 
but must instead “set forth specific facts” that would be admissible in evidence in the event of trial 
from which a rational trier of f act could find for the nonmovant. 17 These facts must be clearly 
identified through affidavits, deposition transc ripts, or incorporated exhibits—conclusory 
allegations alone cannot survive a motion for summary judgment.18 The Court views all evidence 
and reasonable inferences in the light most favorable to the party opposing summary judgment.19 
B. Analysis 
 Defendants seek summary judgment on the basi s that Plaintiff does not submit sufficient 
evidence for a reasonable jury to find that they acted with deliberate indifference to his serious 
medical needs. In the alternative, Defendants argue that summary judgment is warranted because 
Plaintiff does not produce an expert witness report to prove his claim. 
A. Plaintiff’s § 1983 Claim for Deliberate Indifference 
To prove a § 1983 claim, the pl aintiff must show that the defendant, while acting under 
color of state law, caused the plaintiff to be depr ived of a right secured by the Constitution or the 
laws of the United States.20 Section 1983 claims fall into two categories: individual capacity claims 
and official capacity claims. 21 Individual capacity claims sue the state actor, i.e., the officer or 
 
16 Thom v. Bristol-Myers Squibb Co. , 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett , 
477 U.S. 317, 322-23, 325 (1986)). 
17 Id. (citing Fed. R. Civ. P. 56(e)). 
18 Mitchell v. City of Moore , 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores, Inc. , 
144 F.3d 664, 671 (10th Cir. 1998)). 
19 LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004). 
20 See 42 U.S.C. § 1983; Torres v. Madrid, 592 U.S. 306, 310 (2021). 
21 Cheatham v. Dedeke, 2026 WL 873910, at *3 (D. Kan. Mar. 31, 2026). 

 
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prison official, directly. 22 These claims suggest that th e individual defendant personally 
participated in the constitutional violation or failed to supervise others who violated the plaintiff’s 
constitutional rights.23 Official capacity claims sue the en tity responsible, either by naming that 
entity directly or by suing the agent of the entity in his or her official capacity.24 To prevail on an 
official capacity claim, the plaintiff must show that the plaintiff’s harm was caused by the 
constitutional violation committed by the entity’s agent 25 and that the entity’s custom, policy, or 
practice caused the unconstitutional conduct. 26 Plaintiff asserts an individual capacity claim 
against Defendants Ehrlich, Dr. Tomarchio, Dr. Stopp, and Nurse Ehrlich and an official capacity 
claim against Nurse Staley. 
 Plaintiff’s § 1983 claim alleges that Defendants were deliberately indifferent to his serious 
medical needs. A deliberate indifference claim is rooted in the Eighth Amendment, which prohibits 
“cruel and unusual punishment.” “[T]he treatment a prisoner receives in prison and the conditions 
under which he is confined are subject to scrutiny under the Eighth Amendment.”
27 
As a pretrial detainee, Plaintiff is afforded th is protection under the Due Process Clause of the 
Fourteenth Amendment, which requires that pretrial detainees “are entitled to the same degree of 
 
22 Id. 
23 Id. (citing Cuervo v. Sorenson , 112 F.4th 1307, 1314 (10th Cir. 2024); Gallagher v. Shelton , 587 F.3d 
1063, 1069 (10th Cir. 2009)). 
24 Id. 
25 Id. (citing Camuglia v. City of Albuquerque, 448 F.3d 1214, 1223 (10th Cir. 2006)). 
26 Id. (citing Monell, 436 U.S. at 694-95). 
27 Helling v. McKinney, 509 U.S. 25, 31 (1993). 

 
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protection regarding medical attention as that afforded convicted inmates under the Eighth 
Amendment.”28 
 A deliberate indifference claim contains “b oth an objective and a subjective component” 
with respect to each defendant. 29 In the objective analysis, the de privation must be “sufficiently 
serious.”30 “A medical condition is ‘sufficiently serious’ when ‘the condition has been diagnosed 
by a physician as mandating trea tment or is so obvious that even a lay person would easily 
recognize the necessity for a doctor’s attention.’ ”31 To satisfy the subjective component, Plaintiff 
must show that the “prison official knows of and di sregards an excessive risk to inmate health or 
safety.”32 “[T]he official must both be aware of facts from which the inference could be drawn that 
a substantial risk of serious harm exists , and he must also draw the inference.” 33 Further, “a 
complaint that a physician has been negligent in diagnosing or treating a medical condition” is not 
an actionable claim under the Eighth or Fourteenth Amendment. 34 And “[m]edical malpractice 
does not become a constitutional violation merely because the victim is a prisoner.”35 
The Court will first address Plaintiff’s delib erate indifference claim against Defendants 
Ehrlich, Dr. Tomarchio, Fickle, and Dr. Stopp in their individual capacities. Then, it will address 
 
28 Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) (citation omitted). 
29 Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th 
Cir. 2000)). 
30 Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1044 (10th Cir. 2022). 
31 Id. (quoting Al-Turki v. Robinson, 762 F.3d 1188, 1192–93 (10th Cir. 2014)). 
32 Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (quoting Sealock, 218 F.3d at 1209). 
33 Id. (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)). 
34 Estelle v. Gamble, 429 U.S. 97, 106 (1976). 
35 Id. 

 
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Plaintiff’s deliberate indifference claim against Nurse Staley in he r official capacity. Finally, the 
Court will address Plaintiff’s Monell claim against Defendant VitalCore. 
1. Defendant Ehrlich 
Plaintiff asserts that Defendant Ehrlich, in her role as Senior Vice-President of Operations 
for VitalCore, created and implemented policies to interfere with his pain medication and refused 
to provide Plaintiff the medication he was prescrib ed by his doctors. He also asserts that Ehrlich 
ignored his pain complaints an d acquiesced in Defendant’s Stal ey’s provision of ibuprofen and 
Tylenol instead of tramadol. Because Plaintiff does not assert that Defendant Ehrlich administered 
medical care to him, his claim hinges on a theory of supervisory liability. 
Supervisory liability under § 1983 is distinct from respondeat superior.
36 A defendant 
supervisor is only liable if a plaintiff can show an “affirm ative link exists between the 
constitutional deprivation and either the [officer’s ] personal participation, his exercise of control 
or direction, or his failure to supervise.”37 The elements of a supervisor liability claim under §1983 
are: “(1) personal involvement; (2) sufficient causal connection; and (3) culpable state of mind.”38 
At issue here is the third element—whether Ehrlich acted with a culpable state of mind. 
The third element of supervisor liability requi res the plaintiff to s how that the defendant 
took the alleged actions with the requisite state of mind.39 Precisely what state of mind is required 
 
36 Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010). 
37 Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and citation omitted). 
38 Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 
F.3d at 1195). 
39 Id. at 769. 

 
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for individual liability depends on the type of claim the plaintiff brings.40 Because Plaintiff asserts 
a deliberate indifference claim, he must show th erefore that Ehrlich knew of and disregarded an 
excessive risk to Plaintiff’s health and safety.41 
Plaintiff does not meet his burde n here. Ehrlich is not a docto r, and thus she could only 
rely on Plaintiff’s medical providers as to the type of pain medication Plaintiff should be receiving. 
Furthermore, her actions do not show that she ignored Plaintiff’s pain. Shortly after Plaintiff began 
complaining about the denial of tramadol, Ehrlich and Dr. Tomarchio met with Plaintiff to discuss 
his health conditions and his pa in. During that meeting, she and Dr. Tomarchio explained that 
opioids, such as tramadol, are not appropriate long-term pain medication for inmates, like Plaintiff, 
with a history of substance abuse. They also i ndicated that they would provide Plaintiff with a 
muscle relaxer for his spasms. Mo reover, although Plaintiff insisted that he needed tramadol to 
control his pain, Ehrlich’ s meeting notes indicate otherwise. She noted that Plaintiff ambulated 
without difficulty and stepped up to sit on the exam table without any pain complaints. 
In sum, Ehrlich did not knowi ngly disregard Plaintiff’s pain but rather listened to his 
complaints and relied on the medical providers’ a ssessment as to why Plai ntiff should not be on 
tramadol. Accordingly, Ehrlich did not have the necessary subjective state of mind with respect to 
Plaintiff’s medical treatment. The Court grants summary judgment in her favor on Plaintiff’s 
§ 1983 claim. 
2. Dr. Tomarchio 
 
40 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Dodds, 614 F.3d at 1204-05). 
41 Strain v. Regalado, 977 F.3d 984, 990 (10th Cir. 2020) (quoting Mata, 427 F.3d at 751). 

 
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In the Amended Complaint, Plaintiff asserts a supervisory liability claim against Dr. 
Tomarchio based on an official policy or custom. Plaintiff now asserts that Dr. Tomarchio is not 
liable solely under a supervisory liability theory but also based on “his own personal involvement 
and deliberate indifference.” Because both theories of liability requ ire Plaintiff to show that Dr. 
Tomarchio knew of and disregarded a risk to Plai ntiff’s health and safe ty, the Court addresses 
them jointly. 
 Plaintiff argues that Dr. Tomarchio knew of and disregarded his pain complaints. Plaintiff 
further argues that Dr. Tomarchio’s response to his complaints was not medically reasonable, and 
because Dr. Tomarchio prescribed him Baclofen for his muscle spasms, he could have prescribed 
medications other than Tylenol and ibuprofen to treat his pain. 
 The Court agrees that Dr. Tomarchio was aw are of Plaintiff’s many complaints of pain, 
but taken alone, this awareness is not sufficient to show a know ing and excessive disregard for 
Plaintiff’s health. As noted above, Dr. Tomarchio met with Plaintiff to discuss his pain complaints 
and explain why opioid medications are not suitable to treat chronic pain. He also offered Plaintiff 
additional pain medication, in addition to ibuprof en and Tylenol, to treat his chronic conditions. 
The medical records show that Nurse Staley me t with Dr. Tomarchio to discuss alternative 
treatment methods and that after those discussions, Plaintiff was offered Celebrex and other anti-
depressants, such as effexor, to treat his pain. Plaintiff, however, complained about and rejected 
all pain medications that were not tramadol. 
 Plaintiff’s insistence for tramadol over all ot her pain medications is a disagreement with 
his providers as to the proper pain medication. Both the Tenth Circuit and this District have held 

 
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that such disagreement does not amount to deliberate indifference under the Eighth Amendment.42 
For example, May v. Bunting,43 a state prisoner alleged that he was denied medical care while he 
was a pre-trial detainee because his medical provider refused to give him oxycodone.44 In refusing 
the medication, his medical provider informed him that oxycodone was not an effective long-term 
pain medication and offered other options for pain management.45 Judge Lungstrum dismissed the 
plaintiff’s Eighth Amendment claim, finding that th e refusal to provide the plaintiff’s preferred 
pain medication was not delibera te indifference but a disagreem ent with the doctor’s medical 
judgment.46 Judge Lungstrum also observed that othe r jurisdictions have noted the dangers in 
prescribing narcotics in a crimin al setting and found Tylenol and ibuprofen to be suitable 
replacements.47 
Like the plaintiff in May, Plaintiff’s allegations do not s how a complete lack of medical 
care but rather a disagreement with Dr. Tomarc hio as to his preferred pain medication. Dr. 
 
42 See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (noting that the plaintiff’s disagreement 
with the type of medication provided does not indicate a lack of treatment but a disagreement with the doctor’s medical 
judgment); Hood v. Prisoner Health Servs., Inc ., 180 F. App’x 21, 25 (10th Cir. 2006) (finding no constitutional 
violation where appropriate non-narcotic medication was prescribed instead of the narcotic medication the plaintiff 
received before incarceration); Carter v. Troutt, 175 F. App’x 950, 951-52 (10th Cir. 2006) (finding no constitutional 
violation where the prison doctor refused to prescribe a certain pain medication and the inmate refused to be examined 
for follow-up treatment and refused all examination unless he received his desired pain medicine). 
43 2023 WL 2951592 (D. Kan. Apr. 14, 2023). 
44 Id. at *1. 
45 Id. at *5. 
46 See id. (citing Gee, 627 F.3d at 1192; Hood, 180 F. App’x at 25; Carter, 175 F. App’x at 951-52). 
47 See id. at *6 (citing Malouf v. Turner-Foster, 2013 WL 209280, at *5-6 (D. N.J. Jan. 17, 2013) (finding no 
Eighth Amendment violation where the doctors tapered and discounted the plaintiff’s oxycodone prescription because 
narcotics are used for short term relief and not for chronic pain); Thomas v. Wolf, 832 F. App’x 90, 93 (2d Cir. 2020) 
(finding that substituting ibuprofen for more powerful and addictive pain medicine was not an excessive risk to inmate 
health and safety); Lockett v. Bonson , 937 F.3d 1016, 1024-25 (7th Cir. 2019) (noting that the nurse practitioner 
considered the inmate’s past substance abuse, the risks associated with opioid use and substance abuse in prison and 
the high amount of oxycodone prescribed). 

 
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Tomarchio did not deny Plaintiff all pain medication. Instead, he approved other medications that 
are more suitable for management of chronic pain in inmates with a history of substance abuse. 
The reasonableness of Dr.Tomarchio’s acti ons is supported by Dr. Fowlkes’s expert 
opinion. In his expert report, Dr. Fowlkes explained that in the last decade, medical providers have 
become more cautious in prescrib ing narcotics to long-term patient s with a history of substance 
abuse and chronic conditions. According to Dr. Fo wlkes, physicians “are entitled to and indeed 
are expected to use their medical decision-making skills to determine what is the best treatment 
for an individual patient at a particular time[,]” and that the treatment plan for Plaintiff was 
completely appropriate and within the standard of care. Accordingly, the Court finds that Plaintiff 
fails to show a genuine issue of material fact as to whether Dr. Tomarchio knew of and disregarded 
a substantial risk to Plaintiff’s health. The Court grants summary judgment in favor of Dr. 
Tomarchio on Plaintiff’s § 1983 claim. 
3. Ryan Fickle 
In his Amended Complaint, Plaintiff asserts a claim for supervisory liability against Ryan 
Fickle alleging that she acquiesced to Nurse St aley’s unconstitutional behavior and implemented 
and enforced a policy denying him effective trea tment. Fickle seeks summary judgment on the 
basis that Plaintiff cannot show she personally participated in the violation or that she acted with 
a culpable state of mind.
48 
The only evidence regarding Fickle’s actions is that she was present at the meeting with 
Dr. Stopp and Nurse Staley on September 6, 2022, where they agreed that Plaintiff would no longer 
 
48 See Schneider, 717 F.3d at 767 (stating that a plaintiff must show the following elements “to establish a 
successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; 
(2) causation, and (3) state of mind.”). 

 
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be prescribed tramadol. Even assuming this evidence creates a genuine issue of material fact as to 
Fickle’s personal participation, it is not sufficient to show that Fi ckle acted with a culpable state 
of mind. As noted above, a disagreement between an inmate and a medical provider as to a 
preferred pain medication does not amount to deliberate indifference.49 Furthermore, the medical 
records from that meeting show that as a result of the meeting, Plaintiff was tapered off tramadol 
instead of being denied it outright and offe red alternative medications of duloxetine and 
nortriptyline. These are respons ive and appropriate actions. T hus, the Court grants summary 
judgment in Defendant’s Fickle’s favor. 
4. Dr. Stopp 
Plaintiff also asserts a supe rvisory liability claim agains t Dr. Stopp alleging that he 
acquiesced in Nurse Staley’s behavior and implemented and enforced a policy denying him 
medical treatment. Like Defendant Fickle, Dr. Stopp seeks summary judgme nt on the basis that 
Plaintiff has no evidence that he was personally i nvolved in the alleged viol ation or acted with a 
culpable state of mind. 
In his response, Plaintiff argue s that outside orthopedic specia lists previously prescribed 
tramadol for Plaintiff’s pain, that Dr. Stopp knew of these prescriptions and approved of them, and 
that Dr. Stopp forced Nurse Staley to give him Tylenol and ibuprofen even though he knew it 
would not be effective in treating his pain. 
Like the claim against Defendant Fickle, the only evidence concerning Dr. Stopp’s denial 
of tramadol is limited to his consultation wi th Nurse Staley on September 6, 2022, where they 
 
49 See Savage v. Troutt, 2016 WL 8711398, at *7 (W.D. Okla. Aug. 12, 2016) (finding no Eighth Amendment 
violation by a prison doctor who refused to prescribe the same pain medicine as prescribed by the plaintiff’s specialist). 

 
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agreed Plaintiff’s tramadol pres cription should be tapered. The Tenth Circuit has held that “the 
subjective component [of the deliberate indifference test] is not satisfied, absent an extraordinary 
degree of neglect, where a doctor merely exercises his considered medical judgment.”50 Here, Dr. 
Stopp exercised his considered medi cal judgment in tapering Plaint iff off tramadol in favor of 
other non-narcotic medications. 
 Plaintiff relies heavily on the fact that outside orthopedists prescribed him tramadol. But, 
a prison doctor is free to exer cise their own independent judgm ent and offer alternative pain 
medication where legitimate penol ogical concerns, such as subs tance abuse, are at play. 51 
Furthermore, as Dr. Fowlkes opined, “correctiona l healthcare providers are not obligated to, nor 
do we always, follow the recommendations of these outside specialists who are not privy to all the 
details.” Here, Plaintiff had a known history of substance abuse. Dr. Stopp’s decision to taper him 
off the medication in light of this abuse is not actiona ble under the Eighth Amendment. 52 
Accordingly, the Court grants summary judgment to Dr. Stopp on Plaintiff’s § 1983 claim. 
5. Nurse Staley 
Plaintiff asserts a deliberate indifference claim against Nurse Staley in her official capacity. 
To prove an official capacity claim under § 1983, Plaintiff must show that (1) Nurse Staley 
committed a constitutional viola tion and (2) Vital Core’s policy caused the unconstitutional 
conduct.53 Nurse Staley seeks summary judgment on the basis that Plaintiff’s claim fails as to both 
 
50 Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006). 
51 See Todd v. Bigelow, 497 F. App’x 839, 841 (10th Cir. 2012) (holding that terminating a prescription due 
to suspected drug abuse reflects “a legitimate penological interest in the prevention of drug abuse.”). 
52 Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002) (“[A] medical difference of opinion . . . is not 
actionable under the Eighth Amendment.”). 
53 Cheatham, 2026 WL 873910, at *3 (citing Prince, 28 F.4th at 1048-49). 

 
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elements. First, she argues that there is no evidence to support the existence of a VitalCore policy 
or custom denying narcotic pain medication to inmates. And s econd, she argues that Plaintiff 
cannot show she was deliberately indifferent to his serious medical needs. 
As to the existence of a VitalCore policy or custom, Plaintiff submits evidence from his 
medical records in which Nurse St aley specifically refers to a VitalCore policy. Specifically, on 
September 6, 2022, Nurse Staley noted that she c onsulted with Dr. Stopp concerning Plaintiff’s 
tramadol use “secondary to company policies related to opioid ( opioid mimic med).” She further 
noted that during a discussion with Dr. Stopp and Fickle, “it was agreed tramadol would no longer 
be prescribed chronically. Pt [Patient] brought b ack to the facility and explained the need to 
transition off tramadol per VC policy and physician order.” When this evidence is viewed in the 
light most favorable to Plaintiff, it indicates that VitalCore may have had a policy concerning an 
inmate’s use of opioid medication. Thus, the Court fi nds that there is a genuine issue of material 
fact as to whether VitalCore had a policy prohibiting the administration of narcotic medication to 
inmates. 
Even in light of this finding, Plaintiff’s cl aim fails because there is no evidence Nurse 
Staley consciously disregarded a su bstantial risk of harm to Plai ntiff. The undisputed facts show 
that Staley’s actions were responsive and appropria te. After she informed Pl aintiff that he could 
no longer receive tramadol, she agr eed to taper him off the medici ne so he did not experience 
withdrawal symptoms. She prescribed him famo tidine to address the si de effects Plaintiff 
complained of regarding ibuprof en. When Plaintiff co ntinued to complai n, she met with Dr. 
Tomarchio and Ehrlich to discuss alternative treatment options. In November 2022, Nurse Staley 
documented that she had offered Plaintiff Tylenol, ibuprofen, Cymbalta, nortriptyline, and effexor, 

 
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all of which he refused. She also indicated that she discussed therapeutic options for Plaintiff with 
Dr. Tomarchio. 
Plaintiff’s insistence that he receive tramadol is further belied by the medical records from 
November 2022. Nurse Staley document that even after Plaintiff was weaned off tramadol, 
Plaintiff was able to ambulate without difficulty and with limit ed use of his cane. Overall, 
Plaintiff’s claim rests on his fundamental belief that he needs tramadol for pain management. But 
this belief is not enough to show that Nu rse Staley subjected hi m to cruel and unusual 
punishment.54 
Plaintiff argues that Staley’s conduct was unconstitutional because she persisted in a course 
of treatment known to be ineffective and cites two Seventh Circuit decisions—Greeno v. Daley55 
and Berry v. Peterman 56—in support of his argument. But, these cases are neither binding 
precedent nor analogous to Plaintiff’s case. In Greeno, the Seventh Circui t found deliberate 
indifference where the providers ga ve the plaintiff Maalox for a se vere ulcer for a year and half 
without seeking other alternativ e treatment and at one point denied the pl aintiff all medical 
treatment.57 And in Berry, the Seventh Circuit found a triable issue of fact where the doctor refused 
to refer an inmate to a dentist for a toothache for two months, persisting in the “easier and less 
efficacious treatment” of giving him Tylenol, despite knowing it was ineffective. 58 Here, Staley 
 
54 See Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (citing Ramos v. Lamm, 639 F.2d 559, 575 
(10th Cir. 1980) (affirming the district court’s grant of summary judgment against a prisoner who believed he needed 
additional medication and treatment by a specialist)). 
55 414 F.3d 645 (7th Cir. 2005). 
56 604 F.3d 435 (7th Cir. 2010). 
57 414 F.3d at 654-55. 
58 604 F.3d at 441. 

 
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did not persist in a single trea tment but offered Plaintiff alternative medications. Her actions 
demonstrate a responsiveness to Plaintiff’s complaints that is not found in Berry and Greeno. 
Accordingly, the Court finds that Plaintiff fails to show a genuine issue of material fact as to 
whether Nurse Staley was deliberately indifferent to his serious medical needs. The Court grants 
summary judgment in Nurse Staley’s favor on Plaintiff’s § 1983 claim. 
6. VitalCore 
Plaintiff asserts a Monell claim against VitalCore alleging that VitalCore maintains a policy 
that results in deliberate indifference to his me dical needs. Specifically, Plaintiff alleges that 
VitalCore maintains a policy that denies narcotic pain medication to in mates. To prevail on a 
Monell claim, a plaintiff must show “(1) a const itutional violation by a m unicipal employee, (2) 
the existence of a municipal cust om or policy and (3) a direct cau sal link between the custom or 
policy and the violation alleged.”
59 A plaintiff does not prevail under Monell when “there was no 
underlying constitutional violation by any of its officers.”60 As discussed above, the factual record 
demonstrates that Defendants re sponded appropriately to Plaintiff’s chroni c health conditions. 
Without an underlying constituti onal violation, Plaintiff’s Monell claim fails the first prong. 
Accordingly, VitalCore is entitled to summary judgment on this claim. 
B. Expert Witness Report 
 Defendants alternatively seek summary judgment on the basis th at Plaintiff is required to 
submit an expert witness report to prove his claim for deliberate indifference. Because the Court 
 
59 Douglass v. Garden City Cmty. Coll., 543 F. Supp. 3d 1043, 1061 (D. Kan. 2021) (citations omitted). 
60 Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). 

 
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grants summary judgment in Defendants’ favor on the basis that Plaint iff cannot prove his 
deliberate indifference claim, the Court declines to address this argument. 
IV. Conclusion 
 The Court denies Plaintiff’s Motion to Declare Defendants’ Expert Report Inadmissible. 
As to Defendants’ Motion for Summary Judgment, th e Court finds that Plaintiff fails to establish 
a genuine issue of material fact as to the subjective component of his deliberate indifference claim. 
Therefore, the Court grants summary judgment in Defendants’ favor. 
 IT IS THEREFORE ORDERED THAT Defendants’ Motion for Summary Judgment 
(Doc. 130) is GRANTED. 
 IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Declare Defendants’ Expert 
Report Inadmissible under Federal R. Evid. 702 (Docs. 147 and 155) is DENIED. 
IT IS SO ORDERED. 
 Dated this 20th day of May, 2026. 
This case is closed. 
 
 
 E R I C F . M E L G R E N 
 U N I T E D S T A T E S D I S T R I C T J U D G E 

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