Kemp v. Zavaras et al

Filing 160

ORDER Defendant Tarver and Defendant Wades 134 motion for summary judgment is DENIED; Defendant Webster and Defendant Chomjocks motion for summary judgment is GRANTED; Defendant Dowiss motion for summary judgment is DENIED, by Judge R. Brooke Jackson on 10/16/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 09-cv-00295-RBJ-MJW
GLENN H. KEMP,
Plaintiff,
v.
BRIAN WEBSTER, in his individual capacity,
GATBEL CHAMJOCK, in his individual capacity,
CHRIS WADE, in his individual capacity,
TRACY TARVER, in his individual capacity,
CHERYL SMITH, in her individual capacity as Chief Medical Officer of the Colorado
Department of Corrections (“CDOC”),
DR. GARY FORTUNATO, in his individual capacity as physician at SCF,
JOANN STOCK, PA, in her individual capacity as a Physician’s Assistant working at SCF,
BEVERLY DOWIS, in her individual and official capacity as Health Service Administrator for
SCF,
Defendants.

ORDER

This case comes before the Court based upon Plaintiff Glenn Kemp’s claims that
defendants violated the Eight Amendment of the United States Constitution while Mr. Kemp was
confined at Sterling Correctional Facility. Defendants now seek summary judgment [Docket
#134].
Facts1
Auto Accident

1

Many of these facts are disputed by defendants. However, since this is a motion for summary judgment, all facts
are presented in a light most favorable to plaintiff as the non-moving party.

Plaintiff Glenn Kemp is an inmate at Sterling Correctional Facility (“Sterling”).
Defendants Chris Wade and Tracy Tarver are corrections officers at Sterling. On February 5,
2008, Mr. Wade and Mr. Tarver were assigned to transport Mr. Kemp to a medical appointment
in Denver. There was ice and snow on the roads that day, and Mr. Kemp was nervous about the
weather and offered to miss his medical appointment. (Kemp. Aff. ¶¶ 8-9) A second inmate
Greg Savajian, was also transported with Mr. Kemp. (Id. at ¶ 12) For the drive, Mr. Kemp was
fitted with leg chains, a waste chain, handcuffs, and a “black box.” (Kemp Aff. ¶ 13) A “black
box” is a device that further immobilizes a prisoner’s hands. (Id.) After being loaded into the
van, Mr. Kemp asked Mr. Tarver to apply his seatbelt, but Mr. Tarver refused. (Id. at ¶ 15)
According to Mr. Kemp, during the drive Mr. Wade was erratically changing lanes, fishtailing,
and sliding on the snowy highway. (Id. at ¶ 16). In response to the driving, Mr. Tarver yelled at
Mr. Wade and called him an “idiot” several times.” (Id. at ¶ 17) In Denver, the van driven by
Mr. Wade crashed into a car that was stopped at the bottom of a hill. (Id. at ¶ 21). The crash led
to a collision with four other vehicles. (Id. at ¶ 22). Mr. Wade was cited for the accident. (Id. at
26).
Medical Care Related to Auto Accident
The day of the accident, Mr. Kemp did not feel any pain. However, when he woke up the
next morning he was experiencing significant pain in his lower back and leg. (Id. at 28-29).
That day, February 6, 2008, Mr. Kemp saw Mr. Webster, a physician assistant. (Webster Aff. ¶¶
1-3). At the appointment, Mr. Webster found para-lumbar muscle tenderness and prescribed
Motrin. (Id. at ¶ 3) Following that appointment, Mr. Kemp was still in pain and complained to
Mr. Webster that the Motrin was not sufficient. (Kemp Aff. ¶ 34). Mr. Kemp again saw Mr.
Webster on February 12, 2008. (Webster Aff. ¶ 4) Mr. Kemp was still experiencing pain in his

back and leg as well as numbness. (Kemp Aff. ¶ 35). Mr. Webster prescribed Tylenol and gave
Mr. Kemp back exercises to do but did not order additional diagnostic testing. (Id. at ¶ 36.)
Following that appointment, Mr. Kemp sent several “kites” complaining of on-going pain
and asking for follow-up care. (Id. at ¶ 38). Kites allow offenders to send written requests to be
seen by healthcare providers at Sterling. (Id.) Mr. Kemp also filed a grievance against Mr.
Webster asking to be seen by a “qualified physician and/or neurologist.” (Id. at ¶ 41).
On March 3, 2008 Mr. Kemp saw Mr. Chamjock, another physician assistant at Sterling.
Mr. Chamjock did a physical examination, prescribed a muscle relaxant, and ordered an x-ray.
(Id. at ¶¶ 43-44) Mr. Kemp saw Mr. Webster again on April 10, 2008. (Id. at ¶ 47) Mr. Webster
submitted a request for approval of an electromyography (“EMG”). (Ex. 1-F) The EMG was
denied, but an MRI was approved. (Id.) The MRI was performed on April 28, 2008 and showed
a pinched nerve. (Kemp Aff. at ¶ 48) The results of the MRI were faxed to Sterling on April 30,
2008. On May 21, 2008 Mr. Kemp sent a kite to Mr. Webster requesting an appointment to
discuss continued pain. (Id. at ¶ 50) Mr. Kemp saw Mr. Chomjock on June 3, 2008 and
discussed his continued pain. Mr. Kemp sent another kite to Mr. Webster on June 17, 2008
discussing his back and leg pain and muscle deterioration. (Id. at ¶ 53)
Mr. Kemp saw a neurologist on September 10, 2008 and an orthopedic doctor on
September 19, 2008. (Id. at ¶ 55-56) The orthopedic doctor ordered a second MRI and an EMG.
The second MRI was performed on December 11, 2008. (Id. at ¶57). The MRI results were
consistent with the first MRI. (Id.) On January 25, 2009 Mr. Kemp filed a grievance against Mr.
Webster, alleging that Mr. Webster failed to forward the MRI results to the orthopedic doctor
which delayed Mr. Kemp’s care. Id. at ¶ 62. Mr. Kemp did not get a response from Mr. Webster
until April 8, 2009 when he was told that the follow-up appointment had been ordered. (Id. at ¶

64) Mr. Webster left Sterling on April 30, 2009. (Webster Aff. ¶ 12) After this time, Mr. Kemp
continued to been seen at an orthopedic clinic and by a neurologist.

Medical Care Related to Mr. Kemp’s Prostate
In 2008 Mr. Kemp began complaining to Mr. Webster and Mr. Chomjock about frequent
urination and urinary incontinence. Medical records from April 10, 2008 mention urinary
incontinence. (Ex. 1-E) On August 21, 2008 Mr. Webster performed a digital rectal exam which
revealed early benign prostate hypertrophy. (Webster Aff. at ¶ 9) Mr. Kemp was prescribed
Hytrin, but he did not tolerate it well, so its use was discontinued. (Kemp Aff. at ¶ 71) In March
2009 Mr. Kemp was still complaining of urinary incontinence and asked Mr. Chomjock for
urinary briefs because he was soiling himself. (Id. at ¶ 73) Mr. Chomjock also prescribed
Indocin. (Chomjock Aff. at ¶ 13). Mr. Kemp did not see an urologist until February 2010. (Id.
at ¶ 74) In March of 2010 Mr. Kemp was diagnosed with a serious prostate infection that
required two months of antibiotics. (Id. at ¶ 78) Suspecting prostate cancer, in July of 2010 the
urologist requested a biopsy of Mr. Kemp’s prostate. (Id. at ¶ 80) Following that appointment,
Mr. Kemp did not hear anything about a biopsy. (Id. at ¶ 81.) Mr. Kemp began sending kites
and other requests for the biopsy. (Id.) Mr. Kemp also sent a letter to Beverly Dowis, the Health
Services Administrator at Sterling, in September explaining the need for a biopsy. (Id.)
However, Mr. Kemp was not scheduled for a biopsy until October of 2010. (Ex. I-20) That
biopsy and a subsequent biopsy were cancelled because Mr. Kemp was not properly prepped for
the procedure. (Kemp Aff. at ¶¶ 83-84) Mr. Kemp did not get a prostate biopsy until January
2011. (Ex. I-21). The biopsy showed abnormal findings and it was requested that Mr. Kemp get
a follow-up biopsy. (Kemp. Aff. ¶ 86). Mr. Kemp got a second biopsy in April 2011. (Id.) Mr.
Kemp was diagnosed with prostate cancer in 2012.
Standard
Generally, summary judgment is appropriate when “the movant shows that there is no
genuine dispute to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Because the defendants assert a qualified immunity defense the summary
judgment standard is subject to a “somewhat different analysis from other summary judgment
rulings.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). The qualified immunity
doctrine “shields government officials performing discretionary functions from liability for
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Toevs v. Reid, 646 F.3d 752, 755 (10th
Cir. 2011) (internal citations omitted). To overcome summary judgment based on qualified
immunity, the plaintiff “must show that the defendant’s actions violated a specific statutory or
constitutional right, and that the constitutional or statutory rights the defendant allegedly violated
were clearly established at the time of the conduct at issue.” Steffey, 461 F.3d at 1221.
This standard requires a two pronged analysis: “First a court must decide whether the
facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second,
the court must decide whether the right at issue was ‘clearly established’ at the time of the
defendant’s alleged misconduct.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th
Cir. 2009). The first prong requires that the Court determine whether the plaintiff “sufficiently
asserted the violation of a constitutional right.” Lighton v. University of Utah, 209 F.3d 1213,
1221 (10th Cir. 2000). The plaintiff “must do more than abstractly identify an established right,
but must specifically identify the right and conduct . . . which violated that right.” Id. A right is
clearly established if it would have been “clear to a reasonable officer that his conduct was
unlawful under the circumstances presented.” Id.; See also Saucier v. Katz, 533 U.S. 194, 202
(2001). The plaintiff must satisfy both prongs to defeat a claim of qualified immunity. Id.

If a plaintiff succeeds in showing violation of a constitutional right, then defendants bear
the burden of showing that there are no material issues of fact that would defeat their claim of
qualified immunity. Lighton, 209 F.3d at 1221.
Conclusions
Mr. Kemp alleges that his Eighth Amendment rights were violated in three ways: (1) Mr.
Kemp was not seat belted during transport and the van was driven recklessly; (2) Mr. Kemp did
not receive adequate medical attention for injuries sustained in the van accident during the
transport; and (3) Mr. Kemp did not receive adequate medical treatment for a prostate condition.
Each of these claims will be addressed below.
Failure to Seatbelt
Mr. Kemp argues that his rights were violated when he was transported by Mr. Tarver
and Mr. Wade without a seatbelt. Because the defendants have raised the defense of qualified
immunity, Mr. Kemp must show that the defendants’ actions violated a specific constitutional
right, and that the constitutional right the defendants allegedly violated was clearly established at
the time of the conduct at issue. Steffey, 461 F.3d at 1221.
Thus, the first inquiry is whether the defendants’ failure to seatbelt Mr. Kemp rises to the
level of a constitutional violation. Inmates must be “furnished with the basic human needs, one
of which is reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Accordingly, “[a]
prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates
the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
The test for deliberate indifference has both an objective and subjective component. Id.
at 834. The objective component is met when a plaintiff alleges a deprivation that is
“sufficiently serious.” Id. This has been described as “conditions posing a substantial risk of

serious harm,” Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006), an “excessive risk to
inmate health or safety,” Farmer, 511 U.S. at 837, and conditions “sure or very likely to cause
serious illness and needless suffering,” Helling, 509 U.S. at 33. The subjective component refers
to the defendant’s mindset. “‘[D]eliberate indifference describes a state of mind more
blameworthy than negligence,’ but ‘something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.’” Dexter v. Ford Motor Co., 92 Fed.
App’x 637, 640 (quoting Farmer, 511 U.S. at 835) (internal citations omitted). A prison official
is only liable if “the official knows of and disregards an excessive risk to inmate health or safety;
the 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.” Farmer, 511 U.S.
at 537. This standard has been equated to recklessness by the Tenth Circuit. Self v. Crum, 439
F.3d 1227, 1231 (10th Cir. 2006).
First, the Court examines the objective component, whether failure to seatbelt an inmate
poses a substantial risk of serious harm. The Tenth Circuit has looked at this issue once before.
In Dexter v. Ford Motor Co., the court considered whether failure to seatbelt an inmate was by
itself enough to rise to a violation of the Eighth Amendment. 92 Fed App’x 637, 640-44. In
Dexter, prisoners were being transported in a fifteen passenger van while handcuffed and
shackled but not seatbelted. The prisoners were injured when the van hit the median and rolled.
The Dexter court clarified that although there were facts suggesting reckless driving, the
plaintiff’s claim relied solely on failure to seatbelt, and the court was not analyzing failure to
seatbelt combined with reckless driving. Id. at 640. The court determined that failure to seatbelt
alone was not enough to rise to the level of an Eighth Amendment violation. Id. at 641. The
court explained:

The connection between failure to seatbelt and the risk of serious injury . . . is insufficient
for purposes of constitutional analysis. The risk of a motor vehicle accident is dependent
upon a host of factors unrelated to the use of seatbelts, viz., vehicular condition, time of
day, traffic, signage, warning lights, emergency circumstances, weather, road conditions,
and the conduct of other drivers. The eventuality of an accident is not hastened or
avoided by whether an inmate is seatbelted. While the severity of harm should an
accident occur may be exacerbated by the failure to seatbelt, it is not directly occasioned
by it and the other variables must be included in the risk equation.
Id. at 641.
The court further explained a prisoner must show that “the risk of which he complains is
not one that today’s society chooses to tolerate.” Id. at 642. The court looked at current state
laws in the Tenth Circuit and found that there was not clear consensus that passengers in a
vehicle must be seatbelted. Id. Accordingly, the court determined that failure to seatbelt a
passenger was not a risk which society refused to tolerate. Id.
The court distinguished Dexter from Pendelton v. Schroeder, No. C98 0791 FMS, 1998
WL 273000 (N.D. Cal. May 22, 1998), a case in which the complaint “alleged an Eighth
Amendment violation based on the combined factors of failure to seatbelt and a prison practice
to transport prisoners in vans arranged convoy-style between other law enforcement vehicles.”
Dexter, 92 Fed. App’x at 642 n. 7. The court explained that in Pendelton the complaint was
based on more than failure to seatbelt alone. Id.
The United States District Court for the District of New Mexico also examined this issue.
In Barela v. Romero, the court looked at facts very similar to Dexter, where an inmate was
injured while being transported without a seatbelt as part of a convoy. Barela v. Romero, No.
CIVIL06-41 JBDJS, 2007 WL 2219441, *7 (D.N.M. May 10, 2007). In Barela the transport van
was driving at high speeds and stopping erratically. Id. The court distinguished this case from
Dexter and held that the plaintiff had satisfied the requirements to state a claim of an Eighth

Amendment violation because he pled his rights were violated by the combination of reckless
driving and no seatbelt. Id.
This case is likewise distinguishable from Dexter. Unlike in Dexter, in this case, Mr.
Kemp alleges that his Eighth Amendment rights were violated by a combination of factors when
Mr. Wade and Mr. Tarver failed to seatbelt him on a day when roads were snow packed and icy.
(Kemp. Aff. ¶ 9). Further, Mr. Kemp argues that Mr. Wade was driving recklessly, and Mr.
Tarver failed to stop him. Mr. Kemp offers in an affidavit that Mr. Wade was making erratic
lane changes, following too closely, and fishtailing. (Kemp Aff. at ¶ 16). Mr. Kemp alleges that
Mr. Tarver yelled at Mr. Wade, calling him an “idiot” because of his driving. (Id. at ¶ 17.) Once
in Denver, the van hit another car causing a five car accident. (Id. at ¶¶21-22). Mr. Wade
received a traffic citation for following too closely and causing the accident. (Id. at ¶¶ 25-26).2
Unlike in Dexter where the court concluded that “the eventuality of an accident is not
hastened or avoided by whether an inmate is seatbelted,” Dexter, 92 F. App’x at 641, the
likelihood of an accident is increased by poor road conditions, driving too fast for conditions,
erratic lane changes, and following too closely. Unfortunately for all involved, these behaviors
did in fact lead to an accident. And as the Tenth Circuit acknowledged the harm from an
accident can be exacerbated by the failure to seatbelt. Id.
Further, unlike failing to seatbelt a passenger, driving recklessly is a risk society has
chosen not to accept. All states in the Tenth Circuit have laws that forbid reckless or careless
driving. Colo. Stat. § 42-4-528; Kan. Stat. Ann. § 8-1566; N.M. Stat. Ann. § 66-8-113; Okla.
Stat. tit. 47 § 11-901; Utah Code Ann. § 41-6a-528; Wyo. Stat. Ann. § 31-5-236. Anyone who
has driven Colorado roads on a snowy day knows that driving too close to another vehicle is

2

I note this for purposes of the summary judgment motion without suggesting that the citation is admissible.
Defendant’s motion #158 regarding this issue is not ripe.

dangerous. Accordingly, Mr. Kemp has satisfied the objective component of an Eighth
Amendment violation by showing there was substantial risk of serious harm.
Next, Mr. Kemp must show the subjective component of deliberate indifference, that Mr.
Wade and Mr. Tarver knew of the excessive risk and ignored it. Mr. Kemp has proffered
sufficient facts to show that the defendants knew that they were subjecting Mr. Kemp to an
excessive risk. First, Mr. Kemp suggested to the defendants not driving that day because of the
icy roads. (Kemp Aff. at ¶ 12). Also, Mr. Kemp has provided evidence that he asked to be
seatbelted. (Id.). Further, in his affidavit, Mr. Kemp provided that Mr. Tarver called Mr. Wade
an “idiot” because of his erratic driving. (Id. at ¶ 17). All of these warnings suggest that the
officers were aware or should have been aware the Mr. Wade’s driving combined with the road
conditions and lack of seatbelts created a dangerous condition. This shows that the defendants
acted with recklessness, and therefore, Mr. Kemp satisfies the subjective test for deliberate
indifference.
“If, and only if, the court finds a violation of a constitutional right, the next, sequential
step is to ask whether the right was clearly established . . . in the specific context of the case.”
Scott v. Harris, 550 U.S. 372, 377 (2007) (internal quotations omitted). A right is clearly
established if “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “Although the very action
in question does not have to have previously been held unlawful, ‘in the light of pre-existing law
the unlawfulness must be apparent.’” Albright v. Rodriquez, 51 F.3d 1531, 1535 (10th Cir.
1995) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, in order for the
law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point,
or the clearly established weight of authority from other courts must have found the law to be as

the plaintiff maintains.” Medina v. City and Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.
1992).
Neither the Tenth Circuit nor the Supreme Court has examined whether a failure to
seatbelt combined with reckless driving and snowy weather constitutes cruel and unusual
punishment. The closest the Tenth Circuit came was in Dexter when the court looked at failure
to seatbelt alone. However, the Supreme Court and the Tenth Circuit have made it explicitly
clear that subjecting inmates to an unreasonable and substantial risk of harm violates the Eighth
Amendment. Farmer, 511 U.S. at 847. In articulating the deliberate indifference standard, the
Supreme Court has established that inmates are owed a standard of reasonable safety. Helling,
509 U.S. at 33.
The Eighth Circuit addressed this question in Brown v. Fortner, 518 F.3d 552 (8th Cir.
2008). In Brown the court determined that the right to not be driven recklessly without a seatbelt
was clearly established because corrections employees had “fair warning” although there were
no published cases in that circuit “directly addressing deliberate indifference in the context of
prisoner transportation.” Id. at 561. The Eight Circuit did have a case with very similar facts
that was unpublished. However, the court reasoned that “even discounting [the case’s]
significance because it was unpublished, ‘officials can still be on notice that their conduct
violated established law even in novel factual circumstances.’” Id. (quoting Hope v. Pelzer, 536
U.S. 730, 741 (2002)). The court explained that there were other cases addressing deliberate
indifference to the safety of prisoners which made the right clearly established. Id. at 561-62.
Similar to the Eighth Circuit’s reasoning, Mr. Wade and Mr. Tarver had “fair warning”
that failing to seatbelt an inmate combined with driving recklessly on a snowy day would be
deliberate indifference to a substantial risk of harm. Dexter clearly explained that it was only

looking at failure to seatbelt alone and was therefore distinguishing the case from Pendleton
where a federal district court did find that reckless driving combined with failure to seatbelt was
deliberate indifference. Dexter, 92 F. App’x at 640-42. Further, the Dexter court explained that
it was significant in reaching its decision that failure to seatbelt does not make an accident more
likely and listed factors that increase the likelihood of an accident, including weather and road
conditions. Id. at 641. Thus, the Dexter opinion suggests that driving decisions that make an
accident more likely are also more likely to amount to deliberate indifference.
Even discounting Dexter’s significance because it was an unpublished case, the law
describing deliberate indifference is clear in the Tenth Circuit. Deliberate indifference requires
knowingly subjecting an inmate to a sufficiently serious risk of harm. Farmer, 511 U.S. at 834.
This standard has been equated to recklessness in the Tenth Circuit. Self, 439 F.3d at 1231.
Accordingly, it was clearly established that prison employees could not subject an inmate to a
substantial risk of serious harm. Transporting a cuffed and shackled inmate, unrestrained, in a
vehicle that is erratically changing lanes, fishtailing, and following too closely is clearly reckless.
Defendants should have been on notice that this was reckless and therefore in violation of the
Eighth Amendment. Thus, the right is clearly established.
Because Mr. Kemp has shown that, taking the facts in the light most favorable to him as
the non-moving party, his constitutional rights were violated and those rights were clearly
established, Mr. Wade and Mr. Tarver are not entitled to summary judgment as a result of
qualified immunity.
Medical Attention
Like inmate safety, a “prison official’s deliberate indifference to an inmate’s serious
medical needs violates the Eight Amendment.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th

Cir. 2000). Deliberate indifference in the context of medical treatment also has an objective and
subjective component. Id. The objective component requires that the deprivation be
“sufficiently serious.” Id. “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.” Id. (quoting Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir. 1999)). The subjective component is met when a prison official
“knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
Treatment of Back and Leg Pain
Following the car accident, Mr. Kemp began to experience pain and numbness in his
back and legs and muscle deterioration. Mr. Kemp argues that he did not receive adequate
treatment for this condition and this deprivation of medical care rose to the level of an Eighth
Amendment violation. Following the framework laid out above, to be an Eight Amendment
violation, the medical need must have been sufficiently serious: either diagnosed as mandating
treatment from a physician or so obvious that even a lay person would recognize the necessity
for medical attention. Sealock, 218 F.3d at 1209.
The day after the car accident Mr. Webster examined Mr. Kemp. Mr. Webster
determined that there was muscle tenderness and prescribed Motrin. (Webster Aff. at ¶ 3)
Following that Mr. Webster saw Mr. Kemp on February 12, 2008 and diagnosed him with
Lumbago, gave Mr. Kemp back exercises to do and told him to walk more. (Id. at ¶ 4)
Following an MRI on April 28, 2008, Mr. Webster determined that Mr. Kemp was suffering
from a disk protrusion. (Id. at ¶ 6). Based on his experience, Mr. Webster believed that this
would heal on its own in a few months. (Id.). A few months later when Mr. Kemp was still
suffering, Mr. Kemp saw both a neurosurgeon and an orthopedic doctor.

Under these facts, Mr. Kemp was not diagnosed with something needing immediate
medical attention. First, Mr. Webster believed it was muscle tenderness and proscribed Motrin.
When Mr. Webster later determined that the pain was caused by Lumbago, he prescribed back
exercises. Even after a MRI showed a disk protrusion, it was in Mr. Webster’s medical opinion
that this would heal on its own in several months. Mr. Kemp has not provided any evidence to
suggest that those diagnoses were unreasonable.
Mr. Kemp argues that his pain was so serious that even a lay person would recognize his
need for medical attention. In Oxedine the Tenth Circuit found that an inmate’s medical needs
were so severe that even a lay person would know. Oxedine v. Kaplan, 241 F.3d 1272 (10th Cir.
2001). In that case, an inmate’s finger had been severed and reattached. After it was reattached
it began turning black and pieces of it were falling off. Despite this, the doctor failed to seek
help from a specialist to save the decaying finger. In that case, it was clear that any lay man
would know that the inmate needed medical attention and that the medical attention he was
receiving was clearly not working — the inmate’s finger was black and falling off. In Mr.
Kemp’s case, it is not nearly so clear. Mr. Kemp was experiencing back and leg pain and
numbness and muscle deterioration. But, he had also been given pain killers and muscle
relaxers, been shown exercises to do, and underwent diagnostic treatments. It was not clear to a
lay person that he needed additional medical treatment; it was reasonable for a lay person to
think that perhaps he just needed more time to heal. Further, when those treatments failed, Mr.
Kemp was able to see a neurosurgeon and an orthopedic doctor.
The Court acknowledges that it was understandably frustrating to Mr. Kemp when Mr.
Webster failed to answer his kites for follow up appointments and prescription refills. That it
took three months for Mr. Kemp to get the follow-up MRI that the neurologist ordered must have

also been exasperating. However, these shortcomings in care do not rise to constitutional
violations. “[D]elay in medical care only constitutes an Eight Amendment violation where the
plaintiff can show that the delay resulted in substantial harm.” Oxedine, 241 F.3d at 1276
(quoting Sealock, 218 F.3d at 1210). Mr. Kemp has not shown that delays in treatment resulted
in substantial harm. When Mr. Kemp finally received his second MRI, the results were the same
as the first MRI, suggesting that the three month delay in getting the MRI did not cause
additional harm.
Because Mr. Kemp’s back and leg pain and numbness were not “sufficiently serious,”
Mr. Kemp cannot meet the objective test for deliberate indifference required for an Eighth
Amendment violation. Because there was no Eighth Amendment violation, defendants Webster,
Chamjock, and Dowis have qualified immunity for this claim and summary judgment is granted
in their favor.
Prostate Treatment
Mr. Kemp’s prostate condition was “sufficiently serious.” Early on it appeared that Mr.
Kemp had only early benign prostate hypertrophy. However, by March of 2012 Mr. Kemp was
diagnosed with a serious prostate infection requiring two months of antibiotics and in 2012 he
was diagnosed with prostate cancer. An infection serious enough to require two months of
antibiotics is a condition that has been diagnosed by a physician as demanding medical
treatment. Accordingly, it was a sufficiently serious medical condition to meet the objective
prong of an Eighth Amendment complaint.
Next, the subjective part of the test requires the defendant to know of and disregard a
serious risk to inmate health or safety. In his affidavit Mr. Kemp says that he complained
frequently to both Mr. Webster and Chomjock about his urinary incontinence. As early as April

2008 urinary incontinence was mentioned in Mr. Kemp’s medical records. In August 2008 Mr.
Webster performed a digital rectal exam and determined that Mr. Kemp was suffering from early
benign prostate hypertrophy. (Webster Aff. at ¶ 9). Mr. Webster explains that this is common in
men over 50. (Id.) Mr. Webster prescribed Hytrin. (Id.) Mr. Webster said in November he
discontinued use of the Hytrin and ordered a Prostate Specific Antigen test (“PSA”) test for Mr.
Kemp’s prostate. (Id. at ¶ 11). Mr. Webster did not see Mr. Kemp again before he left Sterling
in April 2009. (Id. at 12). In March 2009 Webster saw Mr. Chamjock and requested urinary
briefs because of his incontinence. (Chomjock Aff. at ¶ 13). Mr. Chamjock denied the request,
and instead determined that Mr. Kemp should discuss the issue with his primary care physician,
Dr. Fortunato. (Id.) A prescription for Indocin was ordered as well as a follow-up appointment
with Dr. Fortunato. (Id.)
This evidence does not show the Mr. Webster or Mr. Chamjock knowingly disregarded a
serious risk to Mr. Kemp’s health. Rather, Mr. Webster and Mr. Chomjock sought to diagnose
and treat the problem. Mr. Webster performed a digital rectal exam and both ordered
prescriptions to try to treat the problem. Additionally, Mr. Chamjock ordered that Mr. Kemp see
his primary care physician. “[A] medical professional may fail to treat a serious medical
condition properly. Where this sort of conduct is alleged, the medical professional has available
the defense that he was merely negligent in diagnosing or treating the medical condition, rather
than deliberately indifferent.” Sealock, 218 F.3d at 1211. While Mr. Webster and Mr.
Chamjock may have misdiagnosed the severity of Mr. Kemp’s prostate issues, the evidence does
not show that they were deliberately indifferent. Accordingly, Mr. Webster and Mr. Chamjock
are entitled to qualified immunity.

Although Mr. Webster and Mr. Chamjock attempted to diagnose and treat Mr. Kemp’s
prostate condition, there was a serious mishandling of the treatment. After Mr. Chamjock
referred Mr. Kemp to Dr. Fortunato in March 2009, Mr. Kemp did not see an urologist until
February 2010. In late February 2010 the urologist, Dr. Goldwater, told Mr. Kemp that he
thought that Mr. Kemp had prostate cancer and ordered additional testing. (Kemp Aff. at ¶ 76)
The testing revealed a serious infection that required treatment with antibiotics. After treatment,
in May 2010 Mr. Kemp was again tested and his PSA levels were high. Mr. Kemp saw an
urologist in July 2010 where he was told he would need a scope of his bladder and a biopsy. (Id.
at ¶78) However, two months later Mr. Kemp still did not hear anything about those
appointments. After sending several kites and a letter to Ms. Dowis, Mr. Kemp was scheduled
for a biopsy in October 2010. Unfortunately, Mr. Kemp was not properly prepped for his biopsy
and so it had to be rescheduled. This happened a second time. As a result, a biopsy was not
performed until January 2011, ten months after Mr. Kemp was told he likely had cancer. After
that biopsy, a second biopsy was requested. The second biopsy did not happen until April 2011.
Thus, it took over a year from the time Mr. Kemp was told that he likely had prostate cancer
until the necessary diagnostic tests were performed.
Mr. Kemp argues that Ms. Dowis is in charge of overseeing the clinical staff and
ensuring that inmates get adequate care. However, Ms. Dowis argues that she does not schedule
appointments or arrange for procedures with specialists. In a previous case, this court also
examined Ms. Dowis’s responsibilities.
Ms. Dowis testified, and her job description confirmed, that as the facility’s Health
Services Administrator she has operational and supervisory oversight over the clinical
staff. Her duties include preserving inmates’ rights to legally mandated healthcare.
Among other things she supervises the offender grievance process with respect to
medical issues. Essentially, Ms. Dowis was the supervisor in charge of ensuring, or at

least exercising her best efforts to ensure, that inmates receive necessary and appropriate
medical care.
Self v. Milyard, No. 11-cv-00813-RBJ-CBS, 2012 U.S. Dist. LEXIS 129263 (D. Colo. July 31,
2012).
Mr. Kemp says that he sent Ms. Dowis a letter detailing his difficulty getting a biopsy. In
that case, Ms. Dowis would have known about his delays in treatment and yet not ensured he got
the care he needed. Further, previous trial testimony shows that Ms. Dowis knew that there were
flaws in the system, that appointments with outside providers could fall into a “black hole”
further delaying treatment. (Transcript of Trial at 95:6-96:4, Self v. Milyard, No. 11-cv-00813RBJ-CBS (D. Colo. July 31, 2012, Ex. 2).
Because there is a factual dispute about what Ms. Dowis’s job responsibilities were, at
the summary judgment stage all facts must be read in a light most favorable to Mr. Kemp. Thus,
it is reasonable to understand that it was Ms. Dowis’s responsibility to make sure Mr. Kemp was
getting treatment for his prostate and that Ms. Dowis knew or should have known that Mr. Kemp
was not getting the care he needed and yet did not intervene. This is deliberate indifference.
Ms. Dowis argues that she cannot be liable because she was only a supervisor, that there
was no personal participation. While it is true that a complaint must allege an affirmative link
between a constitutional violation and the individual’s participation in the violation, Stidham v.
Peace Officer Standards and Training, 265 F.3d 1144, 1156 (10th Cir. 2001), that does not
shield Ms. Dowis from responsibility. Mr. Kemp alleges that it was Ms. Dowis’s job to ensure
that all inmates received constitutionally mandated health care. Thus, if Mr. Kemp did not get
the services required by law, it was not a failure of Ms. Dowis to adequately supervise others, but
rather a failure of Ms. Dowis to adequately perform the tasks of her job, thereby establishing the
affirmative link.

Because Mr. Kemp has provided evidence to show both the objective and subjective
prongs of deliberate indifference to establish an Eighth Amendment violation, he must also show
that the right was clearly established. “Elementary principles establish the government’s
obligation to provide medical care for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103 (1976). The right for prisoners to receive adequate medical care is
clearly established. Ms. Dowis argues that this court recently held, “an inmate’s right to have
prison officials make a follow-up appointment with an outside specialist, as requested by the
specialist in his records, notwithstanding the specialist’s failure to initiate the request directly
with the managed care provider, was not a clearly established right . . .” Self, 2012 U.S. Dist.
LEXIS 129263 at *27. However, that is not what this case is about. In this case, Mr. Kemp had
a clearly established right to get treatment for his prostate cancer without unnecessary delays.
Accordingly, Ms. Dowis is not entitled to qualified immunity and thus her request for summary
judgment is denied.
Order
1. Defendant Tarver and Defendant Wade’s motion for summary judgment is DENIED.
2. Defendant Webster and Defendant Chomjock’s motion for summary judgment is
GRANTED.
3. Defendant Dowis’s motion for summary judgment is DENIED.
DATED this 16th day of October, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge