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Bachofer v. Creany

United States District Court, D. Colorado

December 10, 2014

DR. TIMOTHY CREANY JR. (in his personal and official capacities); WILLIAM KLENKE (in his personal capacity); KATHY SMITH (in her personal capacity); SERGEANT PATRICIA BURNS (in her personal capacity); and ROGER WERHOLTZ, Acting Executive Director of the Colorado Department of Corrections (in his official capacity), Defendants.


WILEY Y. DANIEL, Senior District Judge.


THIS MATTER is before the Court on the Defendants' Motion for Summary Judgment (ECF No. 65), filed on December 20, 2013. In that motion, Defendants Dr. Timothy Creany, Nurse Practitioner ("NP") William Klenke, and Colorado Department of Corrections ("CDOC") Director Roger Werholtz ("Defendants") contend that Plaintiff Baruch Bachofer's ("Bachofer") Eighth Amendment claim brought under 42 U.S.C. § 1983 relating to the adequacy of his medical treatment within the CDOC fails. The Defendants further argue that they are entitled to qualified immunity to the extent that they are sued in their individual capacities. Bachofer filed a response (ECF No. 83) on March 4, 2014, in which he indicated that he now only proceeds against Dr. Creany and PA Klenke in their individual capacities for damages and CDOC Director Werholtz in his official capacity for prospective injunctive relief in the form of a permanent injunction. On April 18, 2014, the Defendants filed a reply (ECF No. 91). For the reasons stated below, the Defendants' motion for summary judgment is granted.

A. Eighth Amendment Claim

Bachofer, a CDOC inmate, has sued Defendants Creany and Klenke in their individual capacities for inadequate medical treatment between December 3, 2012 and January 3, 2013 in violation of the Eighth Amendment. ECF No. 83, p.11. On December 3, 2012, Bachofer sought medical treatment for pain that extended from his lower back to his left leg, and pain in his right foot. ECF No. 65, ¶ 1. After examining Bachofer, NP Klenke believed that he may have sciatica, ECF No. 65, ¶ 2, a pain that radiates from the lower back through the leg. As a precaution, NP Klenke implemented lower bunk bed restrictions, changed Bachofer's pain medication, and issued Bachofer a cane to relieve walking pain until more could be determined about Bachofer's condition. ECF No. 65, ¶ 2.

On December 4, 2012, x-rays were taken of Bachofer's foot and lumbar spine. ECF No. 65, ¶ 3. The x-rays revealed a foot fracture line with a small amount of bridging callus. ECF No. 65, ¶ 4. Degenerative changes were also observed in Bachofer's lumbar spine, which may have been related to sciatica. ECF No. 65, ¶ 5. On December 11, 2012, following his review of the December 4, 2012 x-rays, NP Klenke referred Bachofer for an orthopedic consultation, and extended Bachofer's lower bunk bed restriction and cane use. ECF No. 65, ¶ 6. NP Klenke also imposed work restrictions to include no intensive labor, bending, heavy lifting, or prolonged standing. ECF No. 65, ¶ 7. Finally, Bachofer was recommended for an electromyogram test to determine if nerve damage was the cause of his pain. ECF No. 65, ¶ 8, ECF No. 83, ¶ 8.

On December 12, 2012, Dr. Creany first examined Bachofer for approximately two and one-half hours due to the complicated nature of his ailments and lengthy explanation of his medical history. ECF No. 65, ¶ 10. During the exam, Bachofer indicated that the pain in his lower back was affecting his leg, and complained of weakness and sciatica in his left leg. ECF No. 65, ¶ 11-12. Because Bachofer's concerns were a sign of a more serious medical condition called Cauda Equine Syndrome, Dr. Creany measured Bachofer's left and right leg muscles, but did not detect a remarkable difference in muscle size. ECF No. 65, ¶ 12. Dr. Creany also reviewed Bachofer's December 4, 2012 x-ray and noticed a dislocation of the L5 and L6 spinal vertebrae. ECF No. 65, ¶ 13. Dr. Creany requested a Magnetic Resonance Imaging ("MRI") scan to further assess Bachofer's condition. ECF No. 65, ¶ 14.

On December 28, 2012, Bachofer received a MRI of his upper and lower extremities. ECF No. 65, ¶ 19. Dr. Creany reviewed the results on January 3, 2013. ECF No. 65, ¶ 20. The results revealed that Bachofer may suffer from moderately severe spinal stenosis, a condition in which the open space inside the vertebrae is narrowed, likely by inflammation due to damaged discs. ECF No. 65, ¶ 20. On January 3, 2013, Dr. Creany also authorized short-term wheelchair use as a result of Bachofer's written request. ECF No. 65, ¶ 23-24

B. Prospective Injunctive Relief

Bachofer has also sued CDOC Director Werholtz in his official capacity for prospective injunctive relief, i.e., a permanent injunction, for the continued use of his wheelchair and pain medications. ECF No. 83, p.11. Bachofer asserts that his condition has not improved since the commencement of this lawsuit and that as of March 4, 2014 he has a wheelchair and an Offender Care Aid to push his wheelchair for him. ECF No. 83, ¶ 21. However, Bachofer contends that genuine issues of material fact remain regarding whether he will lose his wheelchair and medications unless a permanent injunction is entered. ECF No. 83, ¶ 22. In support, Bachofer describes four instances that compel the need for a permanent injunction.

First, Bachofer asserts that on December 14, 2012 a prison guard named Patricia Burns determined that he was making up his medical condition because she saw him standing and capable of walking short distances. ECF No. 83, ¶ 22. Bachofer states that he never alleged that he could not walk or stand, but that he can only do so for short periods of time. ECF No. 83, ¶ 22.

Second, Bachofer contends that on March 1, 2013 Nurse Kathy Smith was intentionally indifferent towards the swelling in his leg. ECF No. 83, ¶ 22. Nurse Smith sent Bachofer back to his cell without treatment until Dr. Creany intervened a few hours later. ECF No. 83, ¶ 22.

Third, Bachofer states that the events surrounding a failed surgery to correct nerve damage in his left elbow and hand involved cruel and unusual punishment. ECF No. 83, ¶ 22. Specifically, he claims that the guards and nursing staff at the Denver Reception and Diagnostic Center denied his pain medication for hours or days at a time following his surgery because they were understaffed. ECF No. 83, ¶ 22.

Finally, Bachofer contends that a CDOC medical staff member threatened to take away his wheelchair and put him in "the hole" if he refused to walk because she was too lazy and indifferent to assign him an Offender Care Aid to push his wheelchair. ECF No. 83, ¶ 23. Bachofer asserts that he is too weak to push his ...

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