Vigil v. Raemish et al.

Filing 64

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 49 MOTION to Dismiss Amended Complaint filed by Bucholtz (I), Rick Raemish, Theordor (I) Lawrence, Rick (I) Raemisch, Denese (I) Asher, Bosley (I), Sean (I) Foster, Deborah (I) Borrego, Aragon (I) by Magistrate Judge N. Reid Neureiter on 3/29/2019. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01499-WJM-NRN
DANIEL JAMES VIGIL,
Plaintiff,
v.
RICK RAEMISH,
SEAN FOSTER,
THEORDOR LAWRENCE,
DENESE ASHER,
JHON [sic] & JANE DOE,
CAPTAIN BOSLEY,
SGT ARAGON,
MAJOR BUCHOLTZ, and
DEBORAH BORREGO,
Defendants.

REPORT AND RECOMENDATION ON
DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT (DKT. #49)

N. Reid Neureiter
United States Magistrate Judge
This case is before the Court pursuant to an Order (Dkt. #51) issued by Judge
William J. Martinez referring Defendants Rick Raemisch, Sean Foster, Theordor [sic]
Lawrence, Denise Asher, Captain Bosley, Sgt. Aragon, Major Bucholtz, and Deborah
Borrego (collectively “Defendants”) Motion to Dismiss Amended Complaint. (Dkt. #49.)
The Court has carefully considered the motion and Plaintiff Daniel James Vigil’s
response. (Dkt. #60.) On February 13, 2019, the Court heard argument on the subject
motion. (Dkt. #63.) The Court has taken judicial notice of the Court’s file, considered the
applicable Federal Rules of Civil Procedure and case law, and makes the following
recommendation.
1

I. BACKGROUND
a. Procedural History
Mr. Vigil, proceeding pro se, initiated this case on June 15, 2018. (Dkt. #1.) On
June 20, 2018, Judge Lewis T. Babcock dismissed his claims against Defendants Rick
Raemisch and Sean Foster, and the remaining claims were drawn to Magistrate Judge
Michael J. Watanabe. (Dkt. #5.) Upon Judge Watanabe’s retirement, the case was
reassigned to me on August 15, 2018. (Dkt. #22.) Soon thereafter, Defendants moved
to dismiss Mr. Vigil’s Complaint and asked the Court to stay discovery pending a ruling
on the motion. (Dkt. ##28 & 30.) The Court granted the motion to stay. (Dkt. #36.) In
response to Defendants’ motion to dismiss, on September 28, 2018, Mr. Vigil filed an
Amended Complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B). (Dkt. #45.) On October 19,
2019, Defendants filed the subject motion to dismiss. (Dkt. #49.)
b. Mr. Vigil’s Amended Complaint
The nature of Mr. Vigil’s claims requires a relatively detailed recitation of the
chronology of events described in his Amended Complaint. Construing Mr. Vigil’s
allegations liberally and assuming all well-pled allegations as true, he asserts as follows.
•

Mr. Vigil is in the custody of Colorado Department of Corrections
(“CDOC”). He is currently housed in the Buena Vista Correctional Facility
(“BVCF”), but most of the events giving rise to this lawsuit occurred at the
Arkansas Valley Correctional Facility (“AVCF”) in Ordway, Colorado.

•

On the evening of November 21, 2016, Mr. Vigil tripped on a damaged
portion of an AVCF sidewalk. He fell and broke his right arm and injured
his right index finger.
2

•

Although he was in extreme pain, Mr. Vigil at first hoped his injuries would
improve on their own. When the pain got worse, he “put in several medical
requests to be seen,” but received no response.

•

On November 29, 2016, and only after Mr. Vigil showed prison staff his
broken arm, Defendant Lawrence, an AVCF physician assistant,
examined Mr. Vigil. Mr. Lawrence ordered an x-ray and gave Mr. Vigil a
sling.

•

An x-ray was taken on December 2, 2016. Four days later Mr. Lawrence
informed Mr. Vigil that his arm was broken and he would be sent to an
orthopedic specialist.

•

On December 20, 2016, Mr. Vigil was being transported to see an
orthopedic specialist in Pueblo, Colorado when the van he was in had a
flat tire, stranding him and two CDOC officers for several hours. The
officers were eventually told to simply return Mr. Vigil to AVCF, and Mr.
Vigil did not see the specialist.

•

Mr. Vigil did not see to an orthopedic specialist until February 3, 2017 (ten
weeks after his arm was broken), despite over 20 unanswered requests to
seen by medical personal in the intervening weeks. He had not been given
a cast or pain medication, other than Tylenol, during this period.

•

During the February 3, 2017 examination, the orthopedic specialist “was
very upset” that it had taken so long for prison staff to address Mr. Vigil’s
broken arm and, given the delay, she was unsure if anything could be
done short of surgery. She prescribed physical therapy three times a week
3

for four weeks, and Mr. Vigil was given two bandages to wrap his arm and
a foam rubber ball. He was told to follow-up with the doctor for reevaluation.
•

However, Mr. Vigil was not taken to physical therapy and was not taken to
see another doctor until he was moved out of the AVCF six months later.

•

About three weeks after the February 3, 2017 appointment, Mr. Vigil
asked family members to try to find out what they could about his medical
treatment. Mr. Vigil’s father spoke to the orthopedic specialist who
conducted the exam and was told that the CDOC refused to pay for Mr.
Vigil’s physical therapy.

•

Mr. Vigil then began to file grievances regarding his lack of medical
treatment and the failure to properly maintain the sidewalk, which he
contends was a known danger even after repairs had been made. The
CDOC “refused” his grievances because they were not filed within 30 days
of the incident.

•

On May 26, 2017, more than six months after the fall, Mr. Vigil received a
note from Dr. Magnuson, a physician at another CDOC facility, that stated,
“Your recent x-ray radius-neck fracture not healed yet [sic].[”]

•

In May 2017, Mr. Vigil was sent to Dr. Paterson at the Canyon City
Territorial Prison. Dr. Patterson told him that due to the serious condition
of his arm, Mr. Vigil’s medical options were now limited to major surgery.
Mr. Vigil was faced with the prospect of a complete replacement of the
elbow joint with a prosthetic elbow.
4

•

In June 2018, when this lawsuit was filed, Mr. Vigil still had not had
surgery, even though he was told that two surgeons and a doctor had
appealed the CDOC’s decision to refuse to pay for the surgery. Mr. Vigil
was taken off Ansaid, a nonsteroidal anti-inflammatory drug (NSAID), in
preparation for surgery.

•

In the late summer/early fall of 2018, Mr. Vigil finally had surgery on his
arm and was able to start physical therapy. It turned out that his elbow
joint did not need to be completely replaced. Instead, a doctor performed a
bone graft from his hip and used screws, metal straps, and a metal splint
to repair his arm.

•

As of September 24, 2018, Mr. Vigil was also scheduled to have surgery
on his right hand, which had also been injured in the fall.

Mr. Vigil asserts three claims for relief pursuant to 42 U.S.C. § 1983. Claim One
is an Eighth Amendment claim for deliberate indifference to serious medical need
against Defendants Lawrence, Asher, Jane and John Doe, and Borrego. Mr. Vigil
identifies Mr. Lawrence as the physician assistant at AVCF who was in charge of
treating his injuries. He alleges that Mr. Lawrence failed to undertake the proper
procedures to ensure that Mr. Vigil’s medical treatment was proficient, timely, and
professional. Ms. Asher is sued as the head the AVCF nursing department. Mr. Vigil
claims she was responsible for scheduling medical appointments. Ms. Borrego is a
nurse practitioner who treated Mr. Vigil at the BVCF. The Doe Defendants are

5

apparently individuals in the CDOC’s “Insurance Department,” that refused to pay for his
surgery. 1
Claim Two is an Eighth Amendment claim for deliberate indifference to the
damaged condition of the sidewalk against Defendants Bucholtz, Bosley, and Aragon.
These Defendants are allegedly responsible for maintenance at the AVCF.
Finally, Claim Three is another Eighth Amendment deliberate indifference claim
against Defendant Borrego. This claim is essentially duplicative of Claim One as it
pertains to Ms. Borrego, and the Court will discuss the two claims together.
II. LEGAL STANDARDS
a. Pro Se Plaintiff
Mr. Vigil is proceeding pro se. The Court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.

1

The Court so presumes because in his Amended Complaint, Mr. Vigil states, “The
Colorado Department of Corrections, Medical Contractor, Insurance Department, is
deliberately indifferent to my serious medical needs by refusing to pay for the needed
surgery. (Dkt. #45 at 11) (extraneous capitalization and commas omitted.) Moreover, in
his response to Judge Watanabe’s Order to Show Cause regarding the Doe Defendants
(Dkt. #10), Mr. Vigil informed the Court that the Doe Defendants are “Medical
Contractors who refused to pay medical costs[.]” (Dkt. #19 at 1) (extraneous
parentheses and commas omitted.)
6

State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
b. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation
marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at1198. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
7

prongs of analysis. First, the court identifies “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the court
considers the factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives
the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th
Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
c. Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). To resolve a
claim of qualified immunity, the Court must consider two elements: (1) whether the
8

plaintiff has alleged a constitutional violation, and (2) whether the violated right was
“clearly established” at the time of the violation. Id. at 230–31. “The judges of the district
courts . . . [may] exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” Id. at 236. Qualified immunity is applicable unless the
plaintiff can satisfy both prongs of the inquiry. Id. at 232. When a defendant asserts the
defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted
immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
Qualified immunity is immunity from suit, rather than a mere defense to liability.
Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). If a court finds that a defendant is subject to
qualified immunity, the court may dismiss with or without prejudice. Breidenbach v.
Bolish, 126 F.3d 1288, 1294 (10th Cir. 1997); Lybrook v. Members of Farmington Mun.
Sch. Bd. of Educ., 232 F.3d 1334, 1342 (10th Cir. 2000).
III. ANALYSIS
Defendants move to dismiss Mr. Vigil’s lawsuit on several grounds. They argue
(1) they are immune from liability for claims for damages against them in their official
capacities; (2) Defendants Raemisch and Foster were previously dismissed for lack of
personal participation and Mr. Vigil’s Amended Complaint makes no new allegations
pertaining to these Defendants; (3) Mr. Vigil fails to state any claim under the Eighth
Amendment; and (4) they are entitled to qualified immunity.

9

a. Eleventh Amendment Immunity
As an initial matter, to the extent that Mr. Vigil asserts claims for damages
against Defendants in their official capacities, such claims are barred by Eleventh
Amendment immunity. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
b. Claims Against Raemisch and Foster
As noted above, Judge Babcock dismissed Mr. Vigil’s claims against Defendants
Rick Raemisch, the CDOC’s Executive Director, and Sean Foster, the AVCF Warden.
Judge Babcock reasoned as follows:
Personal participation is an essential allegation in a § 1983 action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish
personal participation, Plaintiff must show that each individual defendant
caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). There must be an affirmative link between the alleged
constitutional violation and each individual defendant’s participation, control
or direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d
1053, 1055 (10th Cir. 1993).
Plaintiff does not plead adequate personal participation by Defendants
Raemisch and Foster. The allegations against these defendants rely solely
on conclusory allegations of supervisory liability against Defendant
Raemisch as “the Director of all Colorado State Prisons” and Defendant
Foster as the acting Warden when Plaintiff incurred his injuries. (ECF No. 1
at 3). These defendants may not be held liable for the allegedly
unconstitutional conduct of their subordinates on a theory of respondeat
superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Thus, the Court
will dismiss the claims as alleged against Defendants Raemisch and Foster
with prejudice as legally frivolous.
(Dkt. #5 at 3.)
Mr. Vigil offers no new or additional facts that support the reintroduction of these
Defendants in this lawsuit. Thus, Judge Babcock’s analysis applies with equal force to
Mr. Vigil’s Amended Complaint, and the Court recommends that the claims against
these Defendants be dismissed.

10

c. Mr. Vigil’s Eighth Amendment Claims
Mr. Vigil alleges that his Eighth Amendment right to be free from cruel and
unusual punishment was violated by (1) the conditions of his confinement at AVCF
considering the danger posed by the damaged sidewalk, and (2) Defendants’ deliberate
indifference to his serious medical needs. The Court will address each issue in turn.
1. Conditions of Confinement
“To prevail on a ‘conditions of confinement’ claim under the Eighth Amendment,
an inmate must establish that (1) the condition complained of is ‘sufficiently serious’ to
implicate constitutional protection, and (2) prison officials acted with ‘deliberate
indifference’ to inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.
2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). As to the first
requirement, an inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. Id. This is an objective standard. Lucero v. Mesa Cty.
Sheriff’s Dep’t, 297 F. App’x. 764, 766 (10th Cir. 2008) (citing Shannon v. Graves, 257
F.3d 1164, 1168 (10th Cir. 2001)).
Mr. Vigil cannot satisfy the first element of a conditions of confinement claim.
“The Eighth Amendment does not sweep so broadly as to include possible latent harms
to health.” Clemmons v. Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992). Rather, “the
‘core areas’ of any Eighth Amendment claim are shelter, sanitation, food, personal
safety, medical care, and adequate clothing.” Id. Pursuant to Tenth Circuit authority, for
Mr. Vigil to prevail on this type of conditions of confinement claim, he must allege
“special or unique circumstances” that requires the Court “to depart from the general
rule barring Eighth Amendment liability in prison slip and fall cases.” Reynolds v. Powell,
11

370 F.3d 1028, 1031-32 (10th Cir. 2004). See also LeMaire v. Maass, 12 F.3d 1444,
1457 (9th Cir. 1993) (noting that “slippery prison floors . . . do not state even an
arguable claim for cruel and unusual punishment”) (quotation omitted). Mr. Vigil’s only
allegation is that the sidewalk in question was “damaged” and therefore dangerous to
him and other inmates. Objectively, this allegation is insufficient to establish the type of
“special or unique circumstances” that would implicate an Eighth Amendment violation.
See Ely v. Bowers, No. 4:07CV961 CEJ, 2007 WL 4205802, at *1 (E.D. Mo. Nov. 26,
2007) (finding that a “broken and unlevel” section of sidewalk does not constitute a
substantial risk of harm to prisoner).
Accordingly, Defendants Bucholtz, Bosley, and Aragon are entitled to qualified
immunity, and the Court recommends that Mr. Vigil’s claim against them be dismissed.
2. Deliberate Indifference to Serious Medical Needs
Next, Defendants argue that Mr. Vigils alleges, at most, that Defendants
Lawrence, Asher, the Doe Defendants, and Borrego were negligent in their medical
treatment, which is insufficient as a matter of law to state a claim for deliberate
indifference to serious medical needs. The Court agrees as to all Defendants but Mr.
Lawrence.
Judge Martinez recently set forth the standard for an Eighth Amendment claim
for deliberate indifference to a prisoner’s serious medical needs:
The Eighth Amendment’s prohibition against cruel and unusual punishment
is violated when prison officials “act deliberately and indifferently to serious
medical needs of prisoners in their custody.” Hunt v. Uphoff, 199 F.3d 1220,
1224 (10th Cir. 1999) (emphasis added). An Eighth Amendment claim for
deliberate indifference involves “a two-pronged inquiry, comprised of an
objective and subjective component.” Self v. Crum, 439 F.3d 1227, 1230
(10th Cir. 2006). The objective component requires a showing that the
prisoner’s medical need was “sufficiently serious.” Id. A medical need is
12

considered sufficiently serious when “that condition has been diagnosed by
a physician as mandating treatment . . . or is so obvious that even a lay
person would easily recommend the necessity for a doctor’s attention.”
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (citation and
internal quotation marks omitted). Under the subjective component, the
plaintiff must establish that the defendant “knew [the plaintiff] faced a
substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Hunt, 199 F.3d at 1224 (internal quotation
marks omitted). “The official must have been both aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists,
and he must have also drawn the inference.” Requena v. Roberts, 893 F.3d
1195, 1215 (10th Cir. 2018) (alteration omitted). Moreover, “prison officials
may not be held liable if they prove that they were unaware of even an
obvious risk or if they responded reasonably to a known risk, even if the
harm ultimately was not averted.” Farmer v. Brennan, 511 U.S. 825, 826
(1994). Additionally, “use of a subjective test will not foreclose prospective
injunctive relief, nor require a prisoner to suffer physical injury before
obtaining prospective relief.” Id. at 826–27.
Sardakowski v. Lish, No. 17-cv-2542-WJM-KMT, 2018 WL 4509526, at *3 (D. Colo.
Sept. 20, 2018).
Defendants do not challenge that Mr. Vigil’s broken arm and injured hand were
sufficiently serious medical conditions for Eighth Amendment purposes, and the Court
will assume so for the purposes of this motion. However, Defendants claim that Mr. Vigil
does not allege that he was denied treatment, but only that the treatment he did receive
was untimely and ineffective. Such allegations would be insufficient because “even if a
prison official’s actions fell below a reasonable standard of care, ‘the negligent failure to
provide adequate medical care, even one constituting medical malpractice, does not
give rise to a constitutional violation.’” Sardakowski, 2018 WL 4509526, at *4 (quoting
Sherman v. Klenke, 653 F. App’x 580, 586 (10th Cir. 2016)).
It is clear to the Court that Mr. Vigil’s claims against Ms. Asher, the Doe
Defendants, and Ms. Borrego are inadequate, on their face, to state an Eighth
Amendment claim. First, Mr. Vigil does not allege that Ms. Asher had any subjective
13

knowledge of his condition, and her position as a supervisor of the AVCF nursing staff
alone does not give rise to liability. See Iqbal, 556 U.S. at 676. Similarly, Mr. Vigil’s
allegations against the Doe Defendants (i.e., the “Medical Contractors”/”Insurance
Department” that refused to pay for his surgery) are threadbare and not supported by
factual averments. 2 As to Ms. Borrego, Mr. Vigil does not allege that she denied him
medical treatment. Instead, he claims that she was not truthful with him regarding
scheduling the surgery on his arm. 3 The type of general deceitfulness (rather
confusingly) described by Mr. Vigil does not give rise to Eighth Amendment liability. Due
to Mr. Vigil’s failure to state a cognizable constitutional claim, these Defendants are
entitled to qualified immunity.

2

The Court does not foreclose the possibility that during discovery Mr. Vigil may learn
of individual CDOC employees, other than Mr. Lawrence, who knew of his injuries but
refused to provide him treatment. If that turns out to be the case, Mr. Vigil may file the
appropriate motion to amend.
3

The gravamen of Mr. Vigil’s allegations against Ms. Borrego is as follows:
I have talked with [Ms. Borrego] and she told that the surgeon has requested
the disco of x-ray films, but she does not know if [the CDOC] has sent them.
I told Mrs. Borrego that I thought the surgery had already been scheduled,
she told me not to believe anything that the doctors and surgeons had told
me.
She said she could tell me anything she wanted to and that it would not
mean it was going to happen, or if it was the truth, for that matter.
Because it was just words and it was up to [the CDOC] to make the ultimate
decision to do something or to do nothing and she most likely would not be
notified because the people in charge tell her very little or nothing about
what they decide to do.
After hearing her response, I don’t know who to believe anymore and this
certainty is causing me a lot of additional and unneeded pain and suffering
by not knowing what is next are they [sic] [the CDOC] Medical Providers
going to fix my arm or not.

(Dkt. #45 at 12) (extraneous commas omitted.)
14

Mr. Vigil’s allegations against Mr. Lawrence, however, require closer attention.
Accepting Mr. Vigil’s allegations as true, Mr. Lawrence knew on December 6, 2016 that
Mr. Vigil had a broken arm. He knew at that time that Mr. Vigil should see an orthopedic
specialist. While Mr. Lawrence cannot be blamed for the flat tire that caused Mr. Vigil to
miss the December 20, 2016 appointment, his failure to respond to Mr. Vigil’s
subsequent requests for medical attention or promptly reschedule the orthopedic
examination exposes him to potential Eighth Amendment liability. As Mr. Vigil notes, it
ended up taking over three months from the date of his injury for Mr. Vigil to see a
specialist. In the meantime, he was “treated” with a sling and Tylenol, and after he
missed the December 20, 2016 appointment, Mr. Vigil claims he was not even given
Tylenol.
The Court recognizes that delay in medical care only constitutes an Eighth
Amendment violation where the plaintiff can show that the delay resulted in substantial
harm. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). Nevertheless, the
Court finds that, construing his allegations liberally and in the most favorable light, Mr.
Vigil has cleared this hurdle. When at last he was able to see the orthopedic specialist,
seven weeks after the abortive first appointment, she was “very upset” that it had taken
so long to get Mr. Vigil in to see her and, due to the delay, she was not sure if anything
could be done short of surgery. Hoping to avoid this, she prescribed “aggressive”
physical therapy. Then, when Mr. Vigil was returned to Mr. Lawrence’s care, no physical
therapy was provided, and Mr. Lawrence failed to respond to Mr. Vigil’s requests for
attention. Indeed, Mr. Vigil only learned that the CDOC was denying the prescribed

15

physical therapy after he recruited family members to inquire about the state of his
medical treatment.
As of May 26, 2017, Mr. Vigil’s fracture still had not healed. Mr. Vigil plausibly
alleges that, because of these significant delays, his broken arm required major surgical
intervention that could have been avoided had been provided adequate treatment in the
first place. While Mr. Vigil did not end up with a prosthetic elbow, doctors did have to
harvest bone from his hip to screw into his right arm. Whether this would have
happened had Mr. Lawrence not delayed and/or denied him treatment is a question of
fact that cannot be decided at this early stage. Construing Mr. Vigil’s allegations
liberally, I must assume it to be true. Accordingly, the Court finds that Mr. Vigil’s
Amended Complaint states a claim for deliberate indifference to serious medical needs
against Mr. Lawrence.
Finding so, the Court must now turn to whether Mr. Lawrence is nevertheless
entitled to qualified immunity. This inquiry turns on whether Mr. Lawrence’s conduct
violated clearly established law. The Court finds it did.
It cannot be questioned that the government has an obligation to provide medical
care for the incarcerated: “[a]n inmate must rely on prison authorities to treat his medical
needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble,
429 U.S. 97, 103 (1976). Thus, “pain and suffering which no one suggests would serve
any penological purpose” is “inconsistent with contemporary standards of decency” and
therefore violative of the Eighth Amendment. Id. The Tenth Circuit has likewise
recognized that a “prison official’s deliberate indifference to an inmate’s serious medical
needs violates the Eighth Amendment.” Sealock, 218 F.3d at 1209 (10th Cir. 2000)
16

(citing Estelle, 429 U.S. at 102). In Sealock, the court held that a medical professional
who “knows that his role in a particular medical emergency is solely to serve as a
gatekeeper for other personnel capable of treating the condition” may be liable under §
1983 “if he delays or refuses to fulfill that gatekeeper role due to deliberate indifference.”
Id. at 1211. Thus, “the Tenth Circuit recognizes two types of conduct which may
constitute deliberate indifference in a prison medical case: (1) a medical professional
failing to treat a serious medical condition properly; and (2) a prison official preventing
an inmate from receiving medical treatment or denying access to medical personnel
capable of evaluating the inmate’s condition.” Jenkins v. Utah Cty. Jail, No. 2:11-cv00761, 2015 WL 164194, at *12 (D. Utah Jan. 13, 2015) (citing Self v. Crum, 439 F.3d
1227, 1231 (10th Cir. 2006) and Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005)).
Here, Mr. Lawrence’s conduct arguably falls under both categories. He was a
medical professional who knew of and yet failed to treat Mr. Vigil’s broken arm, which
constitutes a significant injury. See, e.g., Clemmons, 956 F.2d at 1527 (citing cases
holding that broken bones are sufficiently serious for purpose of Eighth Amendment).
He could also be said to have played a gatekeeper role in that he believed that Mr. Vigil
should see an orthopedic specialist, and was on notice that delaying this appointment
for seven weeks may rise to the level of deliberate indifference. Accordingly, “Tenth
Circuit case law involving deliberate indifference and medical treatment in this context is
not so general as to deprive reasonable employees of notice of their constitutional
obligation.” Jenkins, 2015 WL 164194, at *12. The Court finds that Mr. Vigil has satisfied
his burden of demonstrating a clearly established right in the context of this case, and
recommends that his claim against Mr. Lawrence be allowed to proceed.
17

IV. RECOMMENDATION
It is hereby RECOMMENDED that Defendants’ Motion to Dismiss Amended
Complaint (Dkt. #49) be GRANTED IN PART and DENIED IN PART as follows:
•

GRANTED as to any claim for damages asserted against Defendants in
their official capacities;

•

GRANTED as to any claim asserted against Defendants Raemisch and
Foster;
GRANTED as to Claim One against Defendants Ms. Asher, the Doe
Defendants, and Ms. Borrego;

•

GRANTED as to Claim Two;

•

GRANTED as to Claim Three; and

•

DENIED as to Claim One against Defendant Lawrence.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.

18

Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

Dated:

March 29, 2019
Denver, Colorado

N. Reid. Neureiter
United States Magistrate Judge

19