Tivis v. Stock et al
ORDER by Judge Philip A. Brimmer on 3/17/15. ORDERED: The Recommendation of United States Magistrate Judge [Docket No. 221] is ACCEPTED in part. ORDERED: Defendants Physician Health Partners, Inc. and Dr. Steven Krebs' Motion for Summary Judgme nt [Docket No. 181] is GRANTED. ORDERED: Defendants Beverly Dowis, Nicole Wilson, and Meghan Reed's Motion for Summary Judgment [Docket No. 190] is GRANTED in part and DENIED in part. It is GRANTED as to plaintiff's first claim for relief against defendant Beverly Dowis, and DENIED as moot as to plaintiff's second, fifth, and sixth claims for relief. ORDERED: Plaintiff's first, third, fourth, and seventh claims for relief are dismissed with prejudice. ORDERED: Within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. ORDERED: This case is dismissed in its entirety. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02050-PAB-KMT
BEVERLY DOWIS, in her individual and official capacity as Health Service
Administrator for SCF,
NICOLE WILSON, in her individual capacity,
DR. PAULA FRANTZ, in her individual and official capacity as Chief Medical Officer for
the Colorado Department of Corrections,
MEGHAN REED, in her individual capacity and official capacity as ADA Inmate
Coordinator for the State of Colorado,
PHYSICIAN HEALTH PARTNERS, INC., d/b/a Correctional Health Partners, a
Colorado corporation, and
DR. STEVEN KREBS, in his individual capacity.
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya (the “Recommendation”) filed on February 13,
2015 [Docket No. 221]. The magistrate judge recommends that the Court grant in part
two motions for summary judgment: one filed by defendants Physician Health Partners
(“PHP”) and Dr. Steven Krebs [Docket No. 181] and one filed by defendants Beverly
Dowis, Nicole Wilson, and Meghan Reed (the “CDOC defendants”) [Docket No. 190].
Both Dr. Krebs and plaintiff filed timely objections to the Recommendation. Docket
Nos. 222, 226.
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a
proper objection, the Court may review a magistrate judge’s recommendation under any
standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that
Congress intended to require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings”). An objection is proper if it is specific enough to enable the Court “to focus
attention on those issues–factual and legal–that are at the heart of the parties’ dispute.”
United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996).
I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if under
the relevant substantive law it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over
material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Plaintiff is an inmate at the Sterling Correctional Facility (“SCF”). Docket No. 138
at 2, ¶ 1. Plaintiff brings three claims under 42 U.S.C. § 1983 for violations of the
Eighth Amendment against defendants Dowis, Wilson, and Krebs, a claim for violations
of the Americans with Disabilities Act (“ADA”) against defendants Frantz, Reed, and
Dowis, a claim for violations of the Rehabilitation Act of 1973 against defendants Reed
and Dowis, a state law claim for negligence against PHP and Dr. Krebs, and a state law
breach of contract claim against PHP.1 Plaintiff alleges that defendants denied and
delayed a surgery that plaintiff’s health care providers recommended, which was
necessary to treat a life-threatening staph infection that plaintiff contracted as a result of
a defective implant installed during a 2009 total hip replacement surgery. Docket No.
138. Further relevant facts are set forth in detail in the Recommendation, see Docket
No. 221 at 4-11, and will not be recited here except as relevant to the Court’s de novo
There is no question that Mr. Tivis, through no fault of his own, suffered greatly
due to his hip problems. He had the misfortune of receiving a defective hip implant, he
experienced long delays in being evaluated, and, when PA Jurgens gave him hope that
the hip replacement surgery would finally occur, he had to wait another seven months.
However, the issues on the objections are limited to whether two players in the saga,
Dr. Krebs and Ms. Dowis, have legal responsibility for the delays.
On December 29, 2014, the Court granted defendants Dowis, Wilson, and
Reed’s Partial Motion to Dismiss, and dismissed plaintiff’s Eighth Amendment claim
against defendant Wilson as well as plaintiff’s ADA and Rehabilitation Act claims. See
Docket No. 220. Accordingly, the only remaining claim against the CDOC defendants is
plaintiff’s Eighth Amendment claim against defendant Dowis, and the CDOC
defendants’ motion is moot as to all other claims.
A. Dr. Krebs’ Objection
Dr. Krebs objects to the Recommendation’s finding that a dispute of material fact
exists as to whether he violated plaintiff’s Eighth Amendment rights. The Eighth
Amendment’s ban on cruel and unusual punishment is violated if a defendant’s
“deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain.” Self v. Crum, 439 F.3d 1227, 1230 (10th
Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A claim for deliberate
indifference has both an objective and a subjective component. To satisfy the objective
component, a prisoner must demonstrate that his medical need is “objectively,
sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). 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.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
1999) (citation omitted). There is no dispute that plaintiff’s condition satisfies the
objective component of a deliberate indifference claim.
To satisfy the subjective component, a prisoner must demonstrate that the
defendant acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834.
“‘[D]eliberate indifference’ is a stringent standard of fault.” Bd. of Cnty. Comm’r v.
Brown, 520 U.S. 397, 410 (1997). “[T]he subjective component is not satisfied, absent
an extraordinary degree of neglect.” Self, 439 F.3d at 1232. Instead, the def endant
must “know of and disregard an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837. That is, “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.” Id.
The Tenth Circuit has recognized three types of conduct which may constitute
deliberate indifference in a prison medical case: (1) a medical professional failing to
treat a serious medical condition; (2) a prison official preventing an inmate from
receiving medical treatment; or (3) a prison official denying a prisoner access to medical
personnel capable of evaluating the inmate’s condition. Sealock v. Colorado, 218 F.3d
1205, 1211 (10th Cir. 2000). Plaintiff’s complaint against Dr. Krebs invokes the second
type of conduct, liability of a “gatekeeper.”
With regard to the subjective component of the deliberate indifference test, the
Recommendation found that summary judgment was precluded by a genuine issue of
material fact as to whether Dr. Krebs knew that a January 10, 2012 Utilization Review
(“UR”) included a request to approve plaintiff’s hip surgery. Docket No. 221 at 20. The
UR, which requested “ambulatory surgery,” stated in the comments section of the form,
“[r]ecommend aspiration arthrography and hardware removal for potential infection. . . .
scheduled for 1/13/2012. Urgent Request.” Docket No. 183-2 at 2. The June 2012
UR, which ultimately approved the surgery, contained a more specific reference to a
“left hip total hip arthroplasty osteotomy with replacement of antibiotic spacer.” Id. at 4.
The Recommendation found that the reference to “hardware removal for potential
infection” could reasonably be read to refer to the surgery that plaintiff eventually had,
described in the June 2012 UR as a “left hip total hip arthroplasty osteotomy with
replacement of antibiotic spacer.” The Recommendation further noted that, even if
there was ambiguity as to whether Denver Health sought approval for both an
aspiration arthrography and an arthroplasty osteotomy, Dr. “Krebs could have inquired
into the matter further.” Docket No. 221 at 20. Plaintiff argues that the January 2012
UR included requests for both a procedure to determine the presence of infection and
replacement of the defective hip joint. Thus, because the January 2012 UR only listed
the aspiration arthrography – and not the hip surgery – as an approved procedure, the
Recommendation found that a genuine dispute of fact exists as to whether Dr. Krebs
knew of and disregarded plaintiff’s need for surgery. Id.
Dr. Krebs argues, first, that the Recommendation improperly applied the
subjective component of an Eighth Amendment claim by holding him to a standard of
whether he “knew or should have known” of the risk. Docket No. 222 at 5-6. The Court
agrees. “Deliberate indifference” for Eighth Amendment purposes “is a subjective
standard requiring actual knowledge of a risk by the official.” Barney v. Pulsipher, 143
F.3d 1299, 1307 n.5 (10th Cir. 1998). “It is not enoug h to establish that the official
should have known of the risk of harm.” Id. at 1310. The Court, therefore, disagrees
with the magistrate judge’s alternative finding that the mere ambiguity of the UR could
support a finding that Dr. Krebs violated plaintiff’s Eighth Amendment rights by failing to
clarify the request. The Court will address the magistrate judge’s finding that plaintiff
has raised a genuine issue of material fact as to Dr. Krebs’ actual knowledge below.
Dr. Krebs next argues that plaintiff cannot sustain his Eighth Amendment claim
because the January 2012 UR was “approved as submitted.” Docket No. 222 at 7.
The Court disagrees. Although the January 2012 UR was “approved as submitted” the
same day it was received and the space labeled “Approval Specifications/Comments”
was left blank, see Docket No. 183-2 at 2, the common sense reading of the January
2012 UR is that only a single procedure (“1 PROCEDURE(S)”) was approved, namely,
Dr. Krebs argues that there is no evidence that establishes his personal
involvement in the approval of the January 2012 UR. See Docket No. 222 at 7, n.7;
see also Docket No. 211 at 7-8 (disputing plaintiff’s Statement of Additional Material
Facts #5 and arguing that there is no evidence that Dr. Krebs’ testimony referred to the
January 2012 UR). Plaintiff does not address this argument in his response to Dr.
Krebs’ objection. See Docket No. 229.
The Court agrees with Dr. Krebs that the deposition testimony cited by plaintiff
and by the magistrate judge is vague and does not lead to a reasonable inf erence that
Dr. Krebs personally participated in the decision concerning the January 2012 UR.
Plaintiff’s counsel asked Dr. Krebs generally what he remembered about Mr. Tivis’
case, but never asked Dr. Krebs specifically about the January 2012 UR:
Q. Okay. Now, in Mr. Tivis’ case, do you have an understanding of what it
was that the provider was requesting in terms of treatment?
A. Well, after reviewing this case last week, as I recall once, I was asked –
I can’t remember – I think – well, I’d love to see the documents, but I think
what you’re getting at is, was I asked, does he need to see the orthopedist
for a hip replacement? To which the response was authorized.
Q. My question was: Having reviewed the complaint and any other
information, do you have a sense of what the orthopedic surgeon at Denver
Health was asking to do to treat Mr. Tivis?
A. I do.
Q. What’s your understanding of what that was?
A. In having reviewed the document, there was a request because there was
a belief he had an infected hip that needed attention, acutely. We were
asked, you know: Does this guy need to see ortho? And the answer was
Docket No. 181-1 at 12-13, 28:16-29:11. Plaintif f’s questions to Dr. Krebs were not
specific about whether he was being asked about the January 10, 2012 UR or the
June 25, 2012 UR, and Dr. Krebs’ answers do not suggest which UR he had in mind.
As a result, this colloquy does not support an inference that Dr. Krebs was referring to
the January 2012 UR as opposed to the June 2012 UR.
Plaintiff’s counsel’s failure to differentiate the various URs in the record in his
questions to Dr. Krebs is not a mere technical deficiency. Plaintiff’s medical records
show that PHP, Dr. Krebs’ employer, received at least three URs for plaintiff.2 The
sole basis for plaintiff’s Eighth Amendment claim against Dr. Krebs is Dr. Krebs’
alleged denial of a portion of the January 2012 UR.3 And yet plaintiff cites no
testimony or admission by Dr. Krebs from which a reasonable fact-finder could infer
that Dr. Krebs responded to the January 2012 UR. Instead, plaintiff’s counsel and Dr.
Krebs referred generally to an unspecified authorization.4 Moreover, Dr. Krebs
repeatedly testified that, to his recollection, he approved all requested care for
See Docket No. 183-2 at 2-4 (three authorization requests dated, respectively,
January 10, 2012, February 8, 2012, and June 25, 2012).
There is no dispute that Dr. Krebs immediately approved the hip replacement
requested in the June 2012 UR.
See Docket No. 181-1 at 12, 28:16-18 (“Now, in Mr. Tivis’ case, do you have an
understanding of what it was that the provider was requesting in terms of treatment?”);
16, 36:8-11 (“once you reviewed the referral request and you said, Whew, this is bad,
what happens next in terms of the process at CHP?”); see also Docket No. 197-1 at 7,
58:24-25 (“Is there a chance you may have seen [a treatment note dated January 9,
2012] when you were asked to review the referral request?”).
plaintiff,5 yet plaintiff never asked Dr. Krebs why, or if, he denied the request for
“hardware removal” in the January 2012 UR. Although the Court must resolve all
reasonable inferences that may be drawn from the record in plaintiff’s favor, Stover v.
Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004), the Court cannot ov erlook plaintiff’s
failure to present any evidence of Dr. Krebs’ personal participation in the approval or
partial approval of the January 2012 UR.6 Absent evidence of personal participation,
plaintiff cannot show that there is a genuine dispute of material fact as to Dr. Krebs’
knowledge of plaintiff’s serious medical need. Summary judgment is appropriate. 7
See Docket No. 181-1 at 12, 28:20-24 (“I recall once . . . [I was] asked, does
[plaintiff] need to see the orthopedist for a hip replacement? To which the response was
authorized”); 13, 29:7-11 (“there was a request because there was a belief he had an
infected hip that needed attention, acutely. We were asked, you know: Does this guy
need to see ortho? And the answer was yes.”); 15, 33:9-13 (“Q. What do you recall
your role being in that process as it related to Mr. Tivis? A. What I recall is, having
reviewed the documents, that his case was sent to me. I reviewed the case and
authorized the requested care.”); 19, 39:4-10 (“Q. You understand that it was
something that required immediate attention because it was life-threatening, correct?
A. That’s why I immediately authorized it. Q. I understand. So you did your part by
immediately authorizing the procedure, correct? A. Yes.).
There is another section of Dr. Krebs’ deposition that comes close to leading to
an inference that he saw the January 2012 UR. After being asked, “can we agree he
didn’t get the procedure quickly?”, Dr. Krebs answered, “Assuming the hypothetical fivemonth delay that you gave me is anywhere correct, then I would agree. If the person is
known to have an infection, it shouldn’t take five months to get it.” Docket No. 181-1 at
20, 41:15-20. It could be argued that, for there to be a five-month delay, Dr. Krebs
must be assuming that he saw the UR in January 2012. However, the hypothetical
posed to Dr. Krebs is not included in the excerpts and it is impossible to infer that Dr.
Krebs saw the January UR as opposed to someone else from PHP.
The magistrate judge looked to other evidence in the record to support that the
January 2012 UR requested surgery and not a mere aspiration procedure. In particular,
the Recommendation notes that the physician’s assistant who submitted the January
2012 UR believed that she had requested surgery. See Docket No. 221 at 21. This is
irrelevant to plaintiff’s claim against Dr. Krebs, however, as the physician assistant’s
belief as to what procedure she requested has no bearing on whether Dr. Krebs
B. Plaintiff’s Objection
Plaintiff does not object to the Recommendation’s findings that he abandoned
his breach of contract claim against PHP and Dr. Krebs, that his negligence claim
against PHP is barred by the corporate practice of medicine doctrine, and that
plaintiff’s negligence claim against Dr. Krebs fails because plaintiff did not file a
certificate of review as required by Colo. Rev. Stat. § 13-20-602(1)(a). 8 The Court has
reviewed these aspects of the Recommendation and is satisfied that there is “no clear
error on the face of the record.”9 Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Plaintiff’s first objection is that the Recommendation omitted relevant material
evidence from its “Statement of Facts.” Docket No. 226 at 3. Plaintiff highlights
testimony from defendant Dowis in another case where she stated that it was her
constitutional obligation to do everything in her power to make sure that the offender is
getting the care that he needs, that defendant Dowis had at times contacted the
CDOC’s “centralized scheduling unit” to check on the status of follow-up appointments,
that she was aware that untimely processing of specialist recommendations could lead
subjectively understood and disregarded an excessive risk to plaintiff’s health. Farmer,
511 U.S. at 837 (“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
See Docket No. 226 at 1 (objecting only as to the recommendation that
summary judgment should enter against plaintiff on his Eighth Amendment claim
against defendant Dowis, and “not object[ing] . . . regarding [plaintiff’s] other remaining
This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
to delays in treatment, and that she knew there were flaws in the system that caused
delays in treatment. Id. at 3-4. Plaintiff also points to testimony from defendant Dowis
that she had, in the past, contacted Dr. Krebs regarding treatment for offenders, and
that in her response to one of plaintiff’s written grievances, she stated that she would
follow up the next week and would “pass on any information to [plaintiff] as soon as
[she] get[s] it.” Id. at 3-4. Plaintiff’s objection does not appear directed at a particular
finding, and plaintiff does not articulate how the Recommendation’s failure to recite
these specific facts influenced its finding. The objection is therefore not specific
enough to “focus attention on those issues . . . that are at the heart of the parties’
dispute,” and is not properly before the Court. 2121 East 30th Street, 73 F.3d at 1059.
Nonetheless, the Court will consider these additional facts as part of its de novo review
regarding the remainder of plaintiff’s objections.
Plaintiff’s second objection is that the Recommendation mischaracterizes
plaintiff’s claim. Docket. No. 226 at 4-5. Plaintiff takes issue with the
Recommendation’s statement that plaintiff “appears to argue that because Defendant
Dowis generally knew that Plaintiff had a life-threatening medical issue, she was under
an affirmative and ongoing duty to arrange for immediate outside care.” Id. at 5 (citing
Docket No. 221 at 17). According to plaintiff, his “claims against Dowis are far more
specific and . . . specifically allege that Dowis knew the medical condition from which
Mr. Tivis suffered, knew that specialists sought approval of treatment of the condition
with surgical intervention, yet despite that knowledge refused to intervene when delay
of that approval or delay of that treatment became obvious.” Id. Plaintiff’s second
objection, like his first, does not explain how this different characterization invalidates
the Recommendation’s findings. The Court will, however, consider the evidence of
defendant Dowis’ knowledge of plaintiff’s condition and its relevance to plaintiff’s
Eighth Amendment claim in performing its review.
Plaintiff’s third objection is that the Recommendation applied the wrong legal
standard in assessing defendant Dowis’ liability as a gatekeeper. Docket No. 226 at 67. Plaintiff claims that the Recommendation’s interpretation of the gatekeeper liability
standard was incomplete and points out that gatekeeper liability can be found where
an individual “delays or refuses to fulfill that gatekeeper role.” Id. at 6 (citing Sealock,
218 F.3d at 1211). Plaintiff also points out that an inmate need not show that the
defendant believed that the inmate would be harmed, but rather need only show that
the official “acted or failed to act despite his knowledge of a substantial risk of serious
harm.” Id. at 7 (citing Farmer, 511 U.S. at 842) (emphasis removed). Plaintiff argues
that the subjective prong of the deliberate indifference test can be proved with
circumstantial evidence. Id. (citing Farmer, 511 U.S. at 842). Once again, however,
plaintiff does not explain how the additional citations he provides regarding gatekeeper
liability amount to an error in the Recommendation’s legal conclusions, and his
objection is therefore not specific enough to focus the attention on those legal issues
at the heart of the parties’ dispute. 2121 East 30th Street, 73 F.3d at 1059.
Plaintiff’s fourth and final objection is that the Recommendation draws
“improper inferences.” Docket No. 226 at 7. The Court will address each purportedly
improper inference in turn.
Plaintiff argues that the Recommendation’s finding, Docket No. 221 at 18, that
defendant Dowis did not deny plaintiff access to medical personnel capable of
evaluating his condition, is unsupported. Docket No. 226 at 8. Plaintif f maintains that
his March 13, 2012 grievance10 permits the inference that defendant Dowis was aware
that the treatment plaintiff was receiving at SCF was inadequate. Id. The Court
disagrees. Plaintiff’s grievance informed Ms. Dowis that he was in considerable pain
and that he believed that remaining at SCF might exacerbate his infection because “it
creates favorable conditions for bacterial growth.” Docket No. 207-2 at 2. As a result,
plaintiff requested that he be “immediately placed in a hospital.” Id. Ms. Dowis
responded that, based on Dr. Fauvel’s assessment that plaintiff’s condition was not life
threatening, plaintiff did not require hospitalization. Id. Ms. Dowis’ decision to deny
plaintiff’s request for immediate hospitalization in response to plaintiff’s concern that
SCF “creates favorable conditions for bacterial growth” is not evidence that Ms. Dowis
“intentionally den[ied] or delay[ed] access to medical care.” Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). Plaintiff cites no authority, and the Court is aware of none,
that imposes an obligation on gatekeepers to second-guess the determinations of
medical professionals to avoid liability for violating the Eighth Amendment rights of
Plaintiff next argues that, despite Dr. Fauvel’s assessment that plaintiff’s
condition was not life-threatening, Ms. Dowis had an “obligation to intervene after she
was made aware of a troubling delay in the approval of Mr. Tivis’ surgery,” and that, as
a result, a jury could find that Ms. Dowis’ failure to inquire into the cause of the delay
The parties and the Recommendation mistakenly cite March 14, 2012 as the
date of plaintiff’s grievance. Compare Docket No. 221 at 18 and Docket No. 226 at 8
with Docket No. 207-2 at 2.
was equivalent to denying plaintiff access to treatment. Docket No. 226 at 9.
Plaintiff’s argument suggests that a gatekeeper is obligated not only to provide inmates
with access to necessary care, but also to monitor that care and intervene when the
gatekeeper believes the care to be insufficient. The Court finds no support for such an
expansive interpretation of a gatekeeper’s duties on the facts of this case. The Tenth
Circuit has explained that a gatekeeper can be liable for deliberate indifference when
she “prevent[s] an inmate from receiving treatment or den[ies] him access to medical
personnel capable of evaluating the need for treatment.” Sealock, 218 F.3d at 1211.
Examples of failures to fulfill this gatekeeper role that the Tenth Circuit has found
sufficient to create a dispute of fact include failing to call an ambulance when informed
that an inmate has unexplained chest pain, 11 ignoring medical professionals’
recommendations for immediate care,12 and failing to seek medical attention for an
incarcerated person who appeared to be unconscious after having been beaten by
police officers.13 Plaintiff’s claim against Ms. Dowis is far more attenuated than these
examples and seeks liability against Ms. Dowis not for denying plaintiff care, but for
failing to advocate on his behalf when his surgery was delayed. The record shows
See Sealock, 218 F.3d at 1211; see also Mata v. Saiz, 427 F.3d 745, 757 (10th
Cir. 2005) (finding that a prison official confronted with an inmate with chest pain was
“required to notify either a physician, physician assistant, or nurse practitioner” to fulfill
her gatekeeper role).
See generally King v. Patt, 525 F. App’x 713 (10th Cir. 2013) (affirming denial
of summary judgment where prison officials ignored doctor’s recommendation that the
inmate immediately see an orthopedist and nurse’s recommendation that he see an
See Estate of Booker v. Gomez, 745 F.3d 405, 432 (10th Cir. 2014).
that, to Ms. Dowis’ knowledge, plaintiff’s surgery had been requested and was awaiting
approval, and plaintiff was not in a life-threatening condition while he awaited that
approval. The Court finds that no reasonable jury could equate Ms. Dowis’ failure to
intervene in plaintiff’s medical treatment with deliberately denying him care.
Plaintiff also argues that, because Ms. Dowis wrote “Relief granted” in response
to his March 13, 2012 grievance, a jury could infer that she acknowledged that plaintiff
required immediate hospitalization, but failed to follow through. Docket No. 226 at 10.
This argument finds no support in the record. In response to plaintif f’s grievance, Ms.
Dowis wrote that, because plaintiff’s condition was not life threatening, “[i]t is medically
sound to continue to house [plaintiff] at SCF.” Docket No. 207-2 at 2. No reasonable
jury could infer from Ms. Dowis’ response that she believed that plaintiff needed to be
Next, plaintiff argues that a jury could draw an inference of deliberate
indifference from Ms. Dowis’ promise to check on the status of plaintiff’s surgery (after
learning that the orthopedic clinic was waiting for approval from the insurance
company) and the fact that plaintiff did not hear from Ms. Dowis subsequently. Docket
No. 226 at 11. The Court disagrees. No reasonable jury could find that failing to
check on the status of insurance approval for a requested procedure (while plaintiff
was receiving ongoing treatment at SCF) constitutes deliberately denying plaintiff care.
Finally, plaintiff objects to the magistrate judge’s “failure to consider” that Ms.
Dowis was “aware of flaws in the system she supervised causing appointments with
outside providers to fall into a ‘black hole’ further delaying treatment.’” Docket No. 226
at 11. Plaintiff’s argument again conflates the role of “gatekeeper” with that of
“advocate.” As discussed above, however, a gatekeeper is only liable for an Eighth
Amendment violation when she prevents an inmate from receiving treatment or denies
him access to appropriate treatment.
In sum, plaintiff has not produced evidence that is sufficient to create a dispute
of fact as to whether Ms. Dowis was deliberately indifferent to his serious medical
need. Summary judgment is therefore appropriate as to plaintiff’s Eighth Amendment
claim against Ms. Dowis.
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge
[Docket No. 221] is ACCEPTED in part. It is further
ORDERED that defendants Physician Health Partners, Inc. and Dr. Steven
Krebs’ Motion for Summary Judgment [Docket No. 181] is GRANTED. It is further
ORDERED that defendants Beverly Dowis, Nicole Wilson, and Meghan Reed’s
Motion for Summary Judgment [Docket No. 190] is GRANTED in part and DENIED in
part. It is GRANTED as to plaintiff’s first claim for relief against defendant Beverly
Dowis, and DENIED as moot as to plaintiff’s second, fifth, and sixth claims for relief. It
ORDERED that plaintiff’s first, third, fourth, and seventh claims for relief are
dismissed with prejudice. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.
DATED March 17, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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