Reneau v. Cardinas et al

Filing 167

ORDER by Chief Judge Philip A. Brimmer on 5/29/2020, re: 114 Defendants' Motion for Summary Judgment is GRANTED; 117 Plaintiff's Motion for Summary Judgment is DENIED; 143 the Recommendation of United States Magistrat e Judge is ACCEPTED in part and REJECTED in part. ORDERED that this case shall remain open for the limited purpose of ruling on the outstanding Motion for Sanctions [Docket No. 150].(sphil, ) Modified on 5/29/2020 to edit text. (sphil, ).

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-02595-PAB-SKC
CHESTER LEE RENEAU,
Plaintiff,
v.
MARY CARDINAS, in her individual capacity,
JUDY BRIZENDINE, in her individual capacity, and
DOCTOR LUIS CABILING, in his individual capacity,
Defendants.

ORDER

This matter is before the Court on the Report and Recommendation Re: Motions
for Summary Judgment [#114; #117] [Docket No. 143]. Defendant s filed their
objections to the magistrate judge’s recommendation on March 23, 2020. Docket No.
144. Plaintiff filed objections on March 24, 2020. Docket No. 145. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND1
On March 8, 2017, plaintiff, an inmate who was incarcerated at Crowley County
Correction Facility (“CCCF”), a Colorado Department of Corrections-contracted facility,
slipped and fell in his cell. Docket No. 114 at 1-2, ¶¶ 1-2. Plaintiff did not immediately
realize the extent of his injuries and proceeded to breakfast. Id. at 2-3, ¶¶ 3-4. On his

1

The following facts are undisputed unless otherwise indicated.

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way back from breakfast, plaintiff’s leg stiffened and he noticed bruises on his left leg
and shoulder. Id. at 3, ¶ 5. Plaintiff requested to be sent to medical, where Nurse Mary
Cardinas was tasked with evaluating him. Id., ¶ 7.
Ms. Cardinas asked plaintiff what plaintiff wanted her to examine, to which
plaintiff responded that he needed both hi s shoulder and leg examined.2 Id., ¶ 8. Ms.
Cardinas said something to the effect that she would not or could not examine both
plaintiff’s leg and shoulder at the same time on the same day. Id.; Docket No. 119 at 9.
Plaintiff then threatened Ms. Cardinas with legal action if she did not examine both of
his complained of injuries. Docket No. 114 at 3, ¶ 8. A heated argument ensued and,
because plaintiff has a history of being volatile when he feels disrespected, security
escorted plaintiff out of the medical unit. Id., ¶ 9; see also Docket No. 114-1 at 8 (“I
have this history of being volatile toward people who are real disrespectful and causing
me a lot of harm.”); Docket No. 151 at 1 (“Any reasonable person would have gotten
angry and wanted to hit Ms. Cardinas for refusing them medical treatment for their
fractured leg and torn rotator cuff.”). Plaintiff was not examined by Ms. Cardinas or any
other medical professional that day. Docket No. 114 at 3, ¶ 10.
On two separate days in mid-March, nurses on duty examined plaintiff’s leg and
shoulder. Id., ¶ 12; see also Docket No. 119 at 16 (stating that it was March 13 and
March 14, not March 12 and March 13, when nurses examined plaintiff). X-rays, which
are only conducted once a week at CCCF, were ordered for both plaintiff’s left leg and

2

The exact phrasing of this conversation is disputed. See Docket No. 119 at 9.
The substance, however, is not.
2

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shoulder. Docket No. 114 at 4, ¶¶ 13-14. A temporary cast was put on plaintiff’s leg
the same week as his fall. Id., ¶ 15. The following Monday, Dr. Luis Cabiling put a
permanent cast on plaintiff’s leg. Id., ¶ 17. During this appointment, plaintiff requested
that Dr. Cabiling order an MRI for plaintiff’s shoulder. Id., ¶ 18. Dr. Cabiling refused to
order an MRI. Id. Dr. Cabiling did, however, give plaintiff a cortisone shot on at least
one occasion. Id. at 5, ¶ 23; see also Docket No. 119 at 18-19.
Plaintiff filed a grievance, which was reviewed by Judy Brizendine, the Health
Services Administrator for CCCF, to complain about the treatment he received from Ms.
Cardinas and Dr. Cabiling. Docket No. 119 at 1-2; Docket No. 114 at 5, ¶ 25. Although
plaintiff met in person with Ms. Brizendine in regards to his grievance, she did not
examine plaintiff. Docket No. 114 at 5, ¶ 25; Docket No. 119 at 1- 2.
Plaintiff filed this lawsuit on October 30, 2017. See Docket No. 1. Plaintiff
brings claims pursuant to 42 U.S.C. § 1983 for deliberate indifference to his medical
needs against all defendants. Docket No. 12 at 8-13.
Defendants filed a motion for summary judgment on August 1, 2019 arguing that
(1) there is no evidence that Ms. Cardinas disregarded any medical needs, (2) that
plaintiff’s claim against Dr. Cabiling fails because Dr. Cabiling’s refusal to order an MRI
is a disagreement on the type and course of medical treatment, and (3) Ms. Brizendine
could not have disregarded plaintiff’s medical needs because she never examined
plaintiff. See Docket No. 114 at 5-9.
Plaintiff filed a motion for summary judgment on August 5, 2019. See Docket
No. 117. Plaintiff argues that he is entitled to summary judgment against all defendants
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because each disregarded a risk to his medical needs by failing to properly examine,
treat, and diagnose his injuries. Id. at 3-8.
The Court referred both motions to Magistrate Judge Kato Crews. See Docket
Nos. 115, 118. Magistrate Judge Crews issued his recommendation on March 9, 2020.
See Docket No. 143. Magistrate Judge Crews recommends denying plaintiff’s motion
in its entirety, granting defendants’ motion as to Dr. Cabiling and Ms. Brizendine, and
denying defendants’ motion as to Ms. Cardinas. Id. at 12, 14, 16-17. Defendants filed
objections to the magistrate judge’s recommendation on March 23, 2020. Docket No.
144. Plaintiff filed objections on March 24, 2020. Docket No. 145.
II. LEGAL STANDARD
The Court must “determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection
is “proper” if it is both timely and specific. United States v. One Parcel of Real Prop.
Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specific objection
“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id.
In the absence of an objection, the district 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)
(“It 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.”). The Court therefore reviews the non-objected
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to portions of the recommendation to confirm that there is “no clear error on the face of
the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. 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).
Because plaintiff is proceeding pro se, the Court will construe his objections and
pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
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 fact 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 & Cty. 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).
Where “the moving party does not bear the ultimate burden of persuasion at
trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
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omitted). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings,
but instead must designate “specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To
avoid summary judgment, the nonmovant must establish, at a minimum, an inference of
the presence of each element essential to the case.” Bausman, 252 F.3d at 1115.
When reviewing a motion for summary judgment, a court must view the evidence in the
light most favorable to the non-moving party. Id.
III. ANALYSIS
Plaintiff’s claims against each defendant are for violation of plaintiff’s right under
the Eighth Amendment to be free from deliberate indifference to his known medical
needs. Docket No. 12 at 8-13. Plaintiff brings these claim pursuant to § 1983. Id.
A claim for deliberate indifference to serious medical needs has an objective and
a subjective component. The objective component requires that the medical need be
“sufficiently serious.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The
subjective component requires that “a prison official knows of and disregards an
excessive risk to inmate health or safety.” Id. (citation and quotations omitted). Only
the subjective component is at issue here. See Docket No. 114 at 8 (“Defendants
concede [p]laintiff’s injuries constitute a sufficiently serious medical condition.”).
A. Mary Cardinas
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Magistrate Judge Crews recommends that defendants’ motion for summary
judgment be denied as to Ms. Cardinas because a reasonable jury could conclude that
Ms. Cardinas had subjective knowledge of plaintiff’s injuries and ignored plaintiff’s
medical needs. Docket No. 143 at 9.
Defendants object to this conclusion. First, defendants argue that the magistrate
judge based the recommendation on an incorrect interpretation of Howard v. Waide,
534 F.3d 1227 (10th Cir. 2008). Docket No. 144 at 2, ¶ 2. Second, defendants
contend that the magistrate judge improperly relied on evidence not in the record to
conclude that Ms. Cardinas’s failure to evaluate plaintiff resulted in a delay in medical
care that resulted in substantial harm. Id. at 8, ¶ 14.
The Court agrees with defendants that they are entitled to summary judgment on
plaintiff’s claim against Ms. Cardinas.3 The recommendation focuses on whether the
evidence shows that Ms. Cardinas should have been, or was aware, of plaintiff’s
medical needs. While such a conclusion is necessary for a deliberate indifference
claim, it is not sufficient. “[T]he official must be both aware of the facts from which the
inference can be drawn that a substantial risk of serious harm exists, and [s]he must
also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, the
magistrate judge was correct that the evidence in the record demonstrates that Ms.

3

The Court does not, however, agree that the magistrate judge misapplied
Howard. The magistrate judge correctly cited Howard for the proposition that
circumstantial evidence is permissible to demonstrate subjective knowledge and that a
prison official “need not physically examine an inmate for a factfinder to conclude” that
Ms. Cardinas had subjective knowledge of the risk of harm to plaintiff. Docket No. 143
at 8.
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Cardinas was aware of facts to draw the inference that plaintiff was injured –
specifically, plaintiff stating he was bruised and might have broken a bone in his leg.
However, there is no evidence to suggest that Ms. Cardinas in fact drew the inference
that a substantial risk of harm existed as to plaintiff and then disregarded that risk.
Rather, the only evidence is that plaintiff showed bruises to Ms. Cardinas and
told her that he believed that he might have broken something. See Docket No. 114 at
3, ¶ 7 (citing Docket No. 114-1 at 6). These facts alone are not sufficient to
demonstrate that Ms. Cardinas drew the inference that plaintiff was seriously injured.
Bruises can be caused by injuries less serious than broken bones and torn rotator
cuffs. Additionally, plaintiff’s statement that he believed that he had a broken bone
does not demonstrate that Ms. Cardinas concluded that plaintiff was correct. The facts
show that Ms. Cardinas intended to do what any medical professional would do after
being presented with this information, namely, examine the patient to determine what
injury other than bruising was present. However, after informing plaintiff that protocol
dictated that she would not be able to examine both of plaintiff’s complained of injuries
at once, plaintiff threatened Ms. Cardinas with a lawsuit. Given plaintiff’s history of
volatility, the examination ended before Ms. Cardinas could fully inspect the injuries.
See Wishneski v. Dona Ana Cty., 489 F. App’x 854, 861 (10th Cir. 2012) (unpublished)
(“A delay in affording . . . medical care can result in [] a violation . . . if the defendant’s
own conduct . . . was responsible for the delay in treatment.”). Plaintiff presents no
disputed issue of material fact suggesting that Ms. Cardinas drew the inference that
there was a substantial risk of serious harm.
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Spencer v. Abbott, 731 F. App’x 731 (10th Cir. 2017) (unpublished), is
instructive. There, the Tenth Circuit analyzed and addressed three cases where the
defendant had a “front-row seat” to the substantial risks to the plaintiff. Id. First, Abbott
analyzed Oxendine v. Kaplan, 241 F. 3d 1272 (10th Cir. 2001), where, after a doctor
reattached the plaintiff’s severed finger, the doctor ignored that the plaintiff’s finger had
turned “jet black,” the reattached portion had begun to fall off, and the doctor noted
“necrosis” on the reattached finger, “but took no action.” Abbott, 731 F. App’x at 74243 (citing Oxendine, 241 F.3d at 1277-79).
Next, the Tenth Circuit looked to Blackmon v. Sutton, 734 F.3d 1237 (10th Cir.
2013), where prison officials knew of an eleven-year-old detainee’s mental health
issues and strapped him to a chair even though the officials knew such action “offered
no help” and continued to deny him access to mental health treatment. Abbott, 731 F.
App’x at 743 (citing Blackmon, 734 F.3d at 1244-46).
Finally, the court analyzed Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir.
2014), where officers put an arrestee in a “carotid restraint” for three minutes, even
though training materials warned that brain damage or death could occur if used for
more than one minute. Abbott, 731 F. App’x at 743 (citing Gomez, 745 F.3d at 413-15).
The officers carried the arrestee to a cell, placed him on the floor, and never checked
his vitals. Id. The arrestee died in custody. Id.
The Tenth Circuit reasoned that, in these three cases, the substantial risks of
serious harm “were remarkably obvious” and the defendant in each of them had a
“front-row seat to observe” them. Id. at 744 (citations and quotations omitted). The
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court contrasted these cases to the facts in Abbott. There, a medical professional
witnessed the defendant struggling to walk and the plaintiff “visually presented” to the
defendant a prominent spasm in the plaintiff’s upper back. Id. The defendant pressed
on a trigger point, which provided immediate relief to the plaintiff. Id. As a result, the
defendant diagnosed the plaintiff with muscle spasms, even though later that day the
plaintiff suffered a severe stroke. Id.
The Tenth Circuit concluded that these facts were not enough to demonstrate
that the defendant knew of a substantial risk and drew the inference of that risk. Rather
than the plaintiff’s “condition continuing to decline before” the defendant’s eyes, like in
Oxendine, Blackmon, and Gomez, the defendant provided the plaintiff with immediate
relief, which led the defendant to believe that the plaintiff was fine and only suffering
from muscle spasms. Id.
Abbott and its analysis of Oxendine, Blackmon, and Gomez demonstrate that, on
the facts here, more than bruises and plaintiff’s opinion are needed to demonstrate that
Ms. Cardinas in fact drew an inference of a substantial risk of serious harm. Ms.
Cardinas saw bruising, listened to plaintiff’s explanation of his injuries, and prepared to
examine him. She did not ignore any “remarkably obvious” risks of serious harm to
plaintiff that would demonstrate that she in fact drew an inference regarding the
seriousness of plaintiff’s injuries. See id.
The Court therefore agrees with defendants that summary judgment is
appropriate as to plaintiff’s claim against Ms. Cardinas.
B. Luis Cabiling
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Magistrate Judge Crews recommends that the Court grant defendants’ motion
for summary judgment against Dr. Cabiling because Dr. Cabiling’s decision not to give
plaintiff an MRI was a medical decision and plaintiff’s disagreement with that decision
does not rise to the level of deliberate indifference. Docket No. 143 at 12-13.
Plaintiff objects to this conclusion, arguing that Dr. Cabiling is a general
practitioner, making him unqualified to diagnose plaintiff’s shoulder injury and,
therefore, Dr. Cabiling should have referred plaintiff to an orthopedic specialist. Docket
No. 145 at 9-11.
The Court agrees that Dr. Cabiling is entitled to summary judgment. Dr. Cabiling
ordered two x-rays and provided plaintiff with cortisone shots on at least one occasion.
Plaintiff’s sole complaint is that Dr. Cabiling did not order an MRI and, thus, did not
diagnose a rotor cuff injury soon enough. But a disagreement on when or whether to
order a diagnostic test, or a disagreement on the course of treatment, does not
demonstrate that Dr. Cabiling was deliberately indifferent to plaintiff’s medical needs.
Whether a medical professional orders additional diagnostic techniques is a “classic
example of a matter for medical judgment,” and, as a result, a decision not to order a
diagnostic test is “[a]t most . . . medical malpractice.” Estelle v. Gamble, 429 U.S. 97,
107 (1976). Additionally, “an inference of deliberate indifference cannot be drawn
simply because the prisoner ‘disagrees with a diagnosis or a prescribed course of
treatment.’” Mathison v. Wilson, 719 F. App’x 806, 809 (10th Cir. 2017) (unpublished)
(quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999)).
Plaintiff’s argument that Dr. Cabiling is a generalist and therefore should have
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referred plaintiff to a specialist is unpersuasive. First, plaintiff’s reliance on Kikumura v.
Osagie, 461 F.3d 1269, 1295 (10th Cir. 2006), overruling recognized by Rachel v.
Troutt, 764 F. App’x 778 (10th Cir. 2019), is misplaced. Kikumura reviewed a motion to
dismiss, not a motion for summary judgment and, as a result, was only reviewing the
allegations contained in the complaint, not evidence adduced at the summary judgment
stage. Moreover, the standard that the Tenth Circuit utilized in that case is outdated;
the standard asked whether a plaintiff can prove “no set of facts” in support of the
allegations. See Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (noting
that the “no set of facts” test as used in Kikumura and other cases was overruled by the
Supreme Court). Even so, Kikumura does not support plaintiff’s argument. There, the
plaintiff alleged that the defendant knew of the extent of plaintiff’s injuries and
purposefully failed to do a thorough examination because the defendant would then
know that the plaintiff was injured. See Kikumura, 461 F.3d at 1295. The evidence in
this case, and plaintiff’s only allegation, is that Dr. Cabiling did not order an MRI when
plaintiff requested one. Moreover, Dr. Cabiling ordered a second x-ray and provided a
cortisone shot to treat plaintiff. Therefore, unlike Kikumura, there is no evidence that
Dr. Cabiling refused to order an MRI solely to avoid a proper diagnosis.
Plaintiff’s reliance on Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005), and Ginest v.
Bd. of Cty. Comm’rs, 333 F. Supp. 2d 1190 (D. Wyo. 2004), is also unavailing. In
Mata, one of the defendant’s “refused to provide . . . any medical attention.” 427 F.3d
at 756. The Tenth Circuit reasoned that this refusal resulted in the defendant failing “to
perform her gatekeeping role in potential cardiac emergency by not seeking a medical
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evaluation.” Id. Here, the evidence shows that Dr. Cabiling did evaluate plaintiff, but
disagreed on the type and course of treatment. Thus, Maiz does not support plaintiff’s
contention. Additionally, Ginest dealt with systematic deficiencies in maintaining
medical records, not a failure to order further diagnostic testing. 333 F. Supp. 2d at
1205-06. As a result, Ginest does not change the result here.
C. Judy Brizendine
There are no objections to the magistrate judges’s recommendation as to the
actions of Ms. Brizendine. The Court has reviewed the non-objected portions of the
recommendation to satisfy itself that there is “no clear error on the face of the record.”
Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that this portion of the recommendation is a correct application of the facts
and the law.
D. Plaintiff’s Motion for Summary Judgment
Neither party objects to the magistrate judge’s recommendation as to plaintiff’s
motion for summary judgment. The Court has reviewed the non-objected portions of
the recommendation to satisfy itself that there is “no clear error on the face of the
record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the
Court has concluded that this portion of the recommendation is a correct application of
the facts and the law.
IV. CONCLUSION
It is therefore
ORDERED that the Recommendation of United States Magistrate Judge [Docket
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No. 143] is accepted in part and rejected in part. It is further
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 114] is
GRANTED. It is further
ORDERED that Plaintiff’s Motion for Summary Judgment [Docket No. 117] is
DENIED. It is further
ORDERED that this case shall remain open for the limited purpose of ruling on
the outstanding Motion for Sanctions [Docket No. 150].

DATED May 29, 2020.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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